2. THE TEXT OF THE CONVENTION


Joy Hyvarinen, International Treaties Coordinator, January 1996.



This part provides a summary overview of the text of the Convention.

Cross-references to the Climate Convention refer to Articles, cross-references to sections of this guide give the number of the section.



2.1 The Preamble


The Preamble (the introductory part of a convention) reiterates important points and principles behind the Climate Convention. It tells you where the Convention came from by referring to decisions by earlier international meetings which led to the Climate Convention, eg UN General Assembly resolutions, the Ministerial Declaration of the Second World Climate Conference.


Points covered by the Preamble include:


- climate change is a common concern of humankind.


- human activities have been increasing greenhouse gas concentrations in the atmosphere, which enhances the natural greenhouse effect, which will result on average in warming of the Earth.


- the largest share of greenhouse gas emissions comes from developed countries.


- there are many uncertainties in predictions of climate change.


- various actions to address climate change can be justified economically in their own right and can also help solve other environmental problems.



2.2 Definitions (Article 1 of the Convention)


This article defines certain words used in the Convention. Eg


"Climate system" means the totality of the atmosphere, hydrosphere, biosphere and geosphere and their interactions. (Art.1.3)



2.3 The objective of the Convention (Article 2)


Article 2 and Article 4 (see below) together form the heart of the Convention. Key parts of Article 2 read as follows


"The ultimate objective of this Convention and any related legal instruments ...is ... stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system...within a time­frame sufficient to allow ecosystems to adapt naturally ... to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner."


In other words, the purpose of the Climate Convention is to slow down climate change to a level which avoids dangerous human interference with the climate system.


It is worth noting that the words "... and any related legal instruments" means that this will also be the objective of any future protocols to the Climate Convention.


WWF's work on ecological limits to climate change focuses on this Article.



2.4 Guiding principles (Article 3)


Guiding principles, which are to be taken into account when the Convention is put into practice include that


- developed countries should take the lead in combating climate change (Art.3.1)


- the special needs of developing countries must be taken into account (Art.3.2)


- precautionary measures should be taken in response to climate change, and these measures should be cost-effective (Art.3.3).


- policies and measures to protect the climate system should be appropriate for the specific conditions of each Party.


- measures should not be a disguised restriction on international trade.



2.5 The commitments (Article 4)


This long Article is a very important part of the Climate Convention, as it outlines what the Parties (countries which have joined the Convention) have committed themselves to doing.



General commitments


In summary, these are to:


(a) provide national inventories of emissions by sources and removals by sinks of greenhouse gases, using methodologies agreed by the Conference of the Parties (COP).


(b) implement national and regional programmes to mitigate climate change and facilitate adaptation to climate change.


(c) cooperate to develop and transfer technologies which reduce or prevent emissions in all relevant sectors, eg energy, forestry and waste management sectors.


(d) conserve and enhance sinks and reservoirs, including biomass, forests and oceans.


(e) cooperate to adapt to climate change. Africa and the preparation of plans for areas affected by drought and desertification are mentioned here.


(f) take climate change into account in social, economic and environmental policies and actions.


(g) cooperate in research and observation.


(h) cooperate in open exchange of scientific, technological,technical, socio-economic and legal information.


(i) cooperate in education, training and public awareness and encourage the widest possible participation in this process, including the participation of NGOs.


(j) communicate information on implementation of the Convention to the Conference of the Parties (see Article 12).


The Climate Convention covers greenhouse gases not controlled by the Montreal Protocol, which deals with ozone-depleting substances.



Industrialized country commitments


Article 4.2 (a) and (b) sets out specific commitments for countries included in Annex I to the Convention, which covers industrialized countries, including Central and Eastern European countries.


This Article is complicated and the explanation below is simplified. According to 4.2


(a) industrialized countries are to take measures that limit greenhouse gas emissions and protect and enhance sinks and reservoirs and which also show that these countries are taking the lead to combat climate change. The paragraph refers to recognition "...that the return by the end of the present decade to earlier levels of carbon dioxide and other greenhouse gases ... would contribute.." to modifying emissions trends in a manner consistent with the objective of the Convention.


(b) industrialized countries must report on the measures referred to above, with the aim of returning greenhouse gases to their 1990 levels (see also Article 12).


These paragraphs commit industrialized countries to taking measures to return greenhouse gas emissions to 1990 levels by the year 2000.


There have been some differing interpretations of what these paragraphs mean, eg whether the Convention commits industrialized countries to just returning their emissions to 1990 levels by the year 2000 or whether they must stabilize emissions at that level (ie not allow them to increase above 1990 levels after the year 2000).


These questions are irrelevant now, as governments, by adopting the Berlin Mandate, have agreed that the commitments in the Convention must in any case be strengthened. Those discussions are now under way in the Ad Hoc Group on the Berlin Mandate (see section 1.5).



2.6 Joint Implementation (Article 4.2 (a) and (b))


Joint implementation (JI) is not clearly defined in the Convention and has become very controversial.


Concerns relate to the risk that industrialized countries could "buy" cheap emission reductions by investing in projects in developing countries and "crediting" the reduction to their country. This way, industrialized countries might avoid emission reductions in their own countries.


COP 1, which was required to decide on criteria for joint implementation, established a pilot phase on "activities implemented jointly" (AIJ) and the issue remains unresolved. Discussion is continuing in the subsidiary bodies of the COP (see section 2.23).



2.7 Review of the adequacy of the commitments (Article 4.2 (d))


The review of the adequacy of the commitments in the Convention is its most important review process.


The first Conference of the Parties reviewed the adequacy of Article 4.2 (a) and (b), as the Convention required it to and concluded that the current commitments are not adequate. In other words, the COP decided that returning greenhouse gas emissions to 1990 levels by the year 2000 is not an adequate response to the threat posed by climate change. This is the basis for the Berlin Mandate.


This review is part of an on-going process. The COP must undertake a second review by 1998 and then at regular intervals until the objective of the Convention (set out in Article 2) is met.



2.8 Commitments to coordinate and to review policies (Article 4.2 (e))


Industrialized countries shall also:


(i) coordinate economic and administrative instruments. This could for instance cover coordination of a carbon tax.


(ii) identify and review their own policies and practices which encourage climate-unfriendly activities. Not much is being done about this at the moment.



2.9 Review of the Annexes (Article 4.2 (f))


The COP must review Annexes I and II (see section 2.11 below for Annex II) of the Convention no later than 1998. If the Annexes are amended, the country being excluded or included must agree.



2.10 Volunteering commitments (Article 4.2 (g))


Countries not included in Annex I may, when they join the Convention, agree to be bound by the commitments which apply to Annex I countries.



2.11 Funding (Article 4.3)


Developed countries listed in Annex II of the Convention must provide funding to developing countries. Annex II does not include the Central and Eastern European countries.


There are different categories of funding. Developed countries will provide funds for


- the "agreed full costs" of national communications by developing countries (see Article 12).


- the "agreed full incremental costs" of other agreed activities, covered by 4.1.


The definition of incremental costs has been particularly controversial. COP 1 deferred decision on the issue and it is not clear when it will be resolved.


(See also Article 11).



2.12 Adaptation costs (Article 4.4)


Annex II countries must also provide financial assistance to developing countries that are particularly vulnerable to the impacts of climate change (eg small island states), so that they can take adaptation measures.



2.13 Technology transfer (Article 4.5)


This important Article states that Annex II countries must promote and finance transfer of environmentally sound technologies to other Parties, in particular developing countries.



2.14 Countries with economies in transition - Central and Eastern European countries (Article 4.6)


The COP must allow countries with economies in transition, ie Central and Eastern European countries which are included in Annex I, some flexibility in implementing their commitments.



2.15 Developing countries (Article 4.7)


This Article recognizes that economic and social development and poverty eradication are the first priorities of developing countries.


It explicitly states that the extent to which developing countries will implement the Convention will depend on how well developed countries fulfil obligations to transfer financial resources and technology.



2.16 Special categories of countries rticle 4.8, 4.9)


Parties are to consider which actions, including funding, insurance and technology transfer are necessary to help a list of special categories of developing countries. These include small island countries, countries prone to natural disasters and countries liable to drought and desertification.


Special consideration must be given to the least developed countries. The UN lists the countries which are considered least developed.



2.17 Oil exporting countries (Article 4.10)


Countries with economies that might suffer from measures to respond to climate change, in particular countries which depend on fossil fuels exports, must be given special consideration.


Some oil exporting countries see the Climate Convention as a threat, which is why this Article is particularly important.



2.18 Research, education and public awareness (Article 5, 6)


Parties shall support and develop research and observation activities and assist developing countries in this. They shall also promote education, training and public awareness and cooperate internationally for this purpose.



2.19 The Conference of the Parties - the COP (Article 7)


The COP is the highest decision-making body of the Climate Convention. It will oversee and review implementation of the Convention and any protocols.


The COP normally meets once a year.


Extraordinary sessions of the COP can in some circumstances be held at other times.


(See section 2.23 for subsidiary bodies of the COP).



2.20 Rules of Procedure (Article 7.3)


The COP shall adopt Rules of Procedure (eg rules for voting). This has proven very difficult and a minority of countries are currently blocking the adoption of the Rules. The main problem is the majority required for adoption of a protocol, which is not specified in the Convention and so needs to be included in the Rules of Procedure.



2.21 Nongovernmental organizations (Article 7.6)


NGOs may participate in COP sessions if they are qualified in matters covered by the Convention and unless a third of the Parties object. This is a common rule in many conventions.


At the time of writing, participation in meetings which NGOs are attending as observers is not without some difficulties (eg access to the meeting room floor, speaking opportunities). CAN is working with governments and the Secretariat to find a solution.



2.22 The Secretariat (Article 8)


The Secretariat, to be based in Bonn, Germany, provides administrative support for the COP, organizes meetings, produces reports etc.



2.23 Subsidiary bodies of the COP


The subsidiary bodies of the COP are very important, in particular the Subsidiary Body for Scientific and Technological Advice (SBSTA, Article 9). Functions of the SBSTA include assessing the state of scientific knowledge of climate change and promoting technology transfer.


The Subsidiary Body for Implementation (SBI, Article 10) helps the COP review the implementation of the Convention. Its functions include assessing national communications of inventories and measures to implement the Convention.


(See also section 2.27).



2.24 The financial mechanism (Article 11)


The COP decides on policies, priorities and criteria for the financial mechanism, which is to have a democratic and transparent system of governance.


Article 11 is strongly influenced by discussions concerning the Global Environment Facility (the GEF), which has been designated the financial mechanism on an interim basis.


Developed country Parties may also provide financial resources related to the Convention through "bilateral, regional and other multilateral channels".



2.25 National communications (national reports) (Article 12)


Governments must report to the COP on how they are implementing the Convention. The reports are referred to as "national communications".


All Parties (see also Article 4.1) must provide the COP with


(a) a national inventory of emissions by sources and removals by sinks of greenhouse gases not controlled by the Montreal Protocol



(b) a general description of what they are doing to implement the Convention


(c) any other relevant information


Annex I Parties (industrialized, including Central and Eastern European countries) must also include the following information in their communications:


(a) a detailed description of policies and measures to implement commitments under Article 4.2 (a) and (b)



(b) a specific estimate of the effects the policies and measures will have on emissions by sources and removals by sinks.


Annex II Parties must include details of measures taken to implement obligations to provide financial resources and technology.


Annex I Parties must make their first communication within six months of the entry into force of the Convention for the Party.


Other Parties (ie developing countries) must make their communication within three years of the Convention coming into force for each of them or "of the availability of financial resources" (see Article 4.3).


Least developed countries can make their communication when they choose to.


The COP must arrange for technical and financial support to developing countries to help them put together national communications (Article 12.7).



2.26 Public availability (Article 12.10)


The Secretariat will make communications publicly available at the time they are submitted to the COP.



2.27 Resolution of questions about implementation (Article 13)


A working group of the COP is currently considering how to establish a "multilateral consultative process" to help Parties resolve questions concerning implementation of the Climate Convention.



2.28 Settlement of disputes (Article 14)


A Party can declare in writing that it agrees to take disputes to


(a) the International Court of Justice (the World Court)



(b) arbitration. The COP must agree arbitration procedures as soon as practicable and adopt them in an Annex to the Convention.


If a dispute has not been resolved after 12 months (or through the World Court or arbitration) the dispute is to be submitted to a conciliation commission, the decision of which will be a recommendation (ie not legally binding). Article 14 sets some rules for conciliation commissions, but says that the COP must as soon as practicable adopt additional conciliation procedures in an Annex to the Convention.


These provisions will automatically apply to dispute settlement under protocols, unless the protocol has different rules.



2.29 Amendments to the Convention (Article 15)


Amendments (changes of the Convention text) will be adopted at ordinary sessions of the COP.


Note that it will not be possible to convene an extraordinary session of the COP to adopt amendments. The proposed amendment must be sent by the Secretariat to the Parties 6 months in advance. A state must first propose the amendment. The COP must try to reach agreement on the amendment, but as a last resort it can be adopted by a three-fourths majority vote.



2.30 Adoption of Annexes (Article 16)


Annexes are "an integral part" of the Convention, but (with the exception of dispute settlement procedures) they will cover "lists, forms and any other material of a descriptive nature that is of a scientific, technical, procedural or administrative character."


The procedures in Article 15 apply to proposing and adopting annexes.



2.31 Protocols (Article 17)


A protocol is an additional treaty, which is attached to the "parent" treaty.


The COP can adopt protocols at ordinary sessions. The text has to be sent by the Secretariat to the Parties six months in advance. A state must first propose the protocol. Only states which are Parties to the Convention can become Parties to a protocol.


Article 17 does not specify a voting majority for adopting a protocol, an issue which is currently very contentious (see section 2.20).



2.32 Depositary, entry into force, reservations


Conventions usually end with "technical" provisions, some of which are noted below.


The Secretary-General of the UN is depositary, ie countries send their "instruments of ratification", which say they are joining the Climate Convention, to him/her.


The Climate Convention entered into force (became international law) three months after the fiftieth country ratified it. This was on 21 March 1994.


No reservations are allowed, ie no country can say when it joins that there is a part of the Convention it does not accept





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Copyright 1996, The World Wide Fund For Nature