Regulatory Phase Negotiation And Elaboration Of The Kyoto Protocol42

Recognizing the substantial delays that can occur between the adoption of a treaty and its entry into force, the INC/FCCC decided to continue meeting prior to the first meeting of the Conference of the Parties (COP-1) in order to elaborate and implement the UNFCCC's reporting and review procedure, to address unresolved issues such as the relations between the COP and the financial mechanism, and to begin consideration of the next steps beyond the UNFCCC. This ''prompt start'' to the UNFCCC process helped speed the development of the climate change regime by allowing multilateral negotiations to continue during the interim period before the UNFCCC's entry into force.43 In addition, during this interim period, most industrialized country parties submitted national reports and the international review process began. As part of this process, the Secretariat compiled a synthesis report analyzing the overall progress by industrialized countries in implementing their commitments and initiated in-depth reviews by experts of individual national reports.

The UNFCCC entered into force on March 21, 1994, less than 2 years after its adoption. The ink had barely dried on the convention, however, when most countries (including the United States, under the newly elected administration of President Clinton) agreed that its commitments were inadequate and needed to be supplemented by more specific emission limitation objectives. In 1995, the first Conference of the Parties (COP-1) adopted the so-called ''Berlin Mandate,'' which established an ad hoc com-mittee44 charged with negotiating a new agreement that would set forth additional commitments for industrialized countries for the post-2000 period. The Clinton Administration reluctantly accepted the Berlin Mandate, despite its complete rejection of US efforts to leave open the possibility of new mitigation commitments for developing countries.

The negotiations continued for 2 years, ending in the adoption of the Kyoto Protocol in December 1997. Following the pattern of the UNFCCC

negotiations, little progress was made initially, as some countries questioned the need for legally binding commitments. Until the very final stage, negotiations remained stalemated over three issues: first, what the emissions limitation targets should be for developed countries; second, whether the protocol should include ''flexibility mechanisms'' to allow countries to meet their targets in a cost-effective manner; and third, whether the protocol should include any emission objectives for developing countries. With regard to the first issue, the European Union proposed a comparatively strong target, requiring a 10% cut in greenhouse gas emissions below 1990 levels by the year 2010, while other industrialized countries such as the United States and Australia proposed much weaker targets, with Japan somewhere in the middle. The debate about flexibility was equally, if not more, divisive. The United States sought mechanisms to allow developed countries to achieve their emissions targets in the most flexible, cost-effective manner possible, through mechanisms that would, among other things, allow countries to receive credit for emissions reductions in other countries as well as for forest and agricultural activities (''sink activities'') that remove carbon dioxide from the atmosphere. The European Union (generally supported by developing countries) tended to oppose these flexibility mechanisms on the ground that industrialized countries should meet their emissions targets primarily through reductions in carbon dioxide emissions at home. Finally, on the third issue, the United States pressed for the inclusion of a mechanism to allow developing countries to ''voluntarily'' assume emission limitation objectives. Not surprisingly, most developing countries strongly opposed such an approach, arguing that they were not responsible for creating the climate change problem and had other more pressing priorities.

In essence, the Kyoto Protocol represents a trade-off between EU victory on the first issue (namely, the stringency of the emission targets), US victory on the second issue (the flexibility mechanisms) and developing country victory on the third issue. The United States accepted a much stronger target than it had wanted, but succeeded in incorporating significant flexibility into the protocol. Most importantly, as detailed below, the protocol provided for the development of an international emissions trading system; created the Clean Development Mechanism (CDM), by which industrialized countries can receive credit for emission reduction projects in developing countries; and allowed for the possibility of credits for certain sink activities. Developing countries, however, successfully resisted strong US pressure to establish a process by which they could assume quantitative emission limitation goals.

While a tremendous achievement, the Kyoto Protocol deferred to future negotiations, most of the detailed issues about how the various flexibility mechanisms would work. That was the subject of the post-Kyoto negotiations that concluded in Marrakesh in Fall 2001. The scope of these postKyoto negotiations was agreed upon at COP-4 in Buenos Aires, where the parties adopted a comprehensive plan for the completion of work on the Kyoto Protocol rules (the "Buenos Aires Plan of Action''). Initially, negotiations were scheduled to conclude in November 2000 at COP-6 in The Hague. But when negotiations broke down at the eleventh hour, principally over the issue of credits for sink activities, the parties agreed to reconvene the following summer to make one final effort to reach agreement. At first, it looked like this effort would be fruitless. The rejection of the Kyoto Protocol by the newly elected Bush Administration in early 2001 led many to predict the protocol's demise. But, ironically, the peremptory nature of the Bush Administration's action had the opposite effect. It galvanized other countries into action - in particular, the European Union - and led them to make the necessary compromises for adoption of the Marrakesh Accords, which set forth detailed rules fleshing out the Kyoto Protocol's often skeletal provisions. As a result of Russia's ratification, the Kyoto Protocol entered into force in February 2005.

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