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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