United Nations Framework Convention on Climate Change: History and Evolution of Negotiations and Agreements

Birleşmiş Milletler İklim Değişikliği Çerçeve Sözleşmesi: Müzakerelerin ve Anlaşmaların Gelişimi ve Tarihi

Mehmet ALTUNKAYA

Since 1990s Climate Change has become an inseparable part of the international politics and through diverse negotiations under United Nations (UN) structure notable number of agreements has been reached which constitutes the global climate change law today. United Nations Framework Convention on Climate Change which is signed in 1992 is still stands as the fundamental text of this law and established a series of conferences where further negotiations took place to develop necessary measures through international agreements for climate action. This paper aims to investigate evolution of international climate change law through four major international agreements (UNFCCC, Kyoto Protocol, Copenhagen Accords, Paris Agreement) reached in these negotiations. In this way, it will reveal key controversy points in the negotiations and current situation of the global climate change regime.

Environment, Climate Change, Developed and Developing Countries.

1990’lı yıllardan beri İklim Değişikliği uluslararası siyasetin ayrılmaz bir parçası haline gelmiş durumda ve özellikle Birleşmiş Milletler (BM) bünyesindeki kapsamlı müzakereler sonucunda, bugün uluslararası iklim değişikliği hukukunu oluşturan, dikkate değer sayıda uluslararası anlaşmaya varılmış durumda. Bu bakımdan, 1992 yılında imzalanan Birleşmiş Milletler İklim Değişikliği Çerçeve Sözleşmesi (BMİDÇS) bu hukukun en temel metinlerinden birini oluşturmakla kalmayıp, aynı zamanda iklim değişikliğiyle mücadele müzakerelerinin yürütüleceği ve yapılacak uluslararası anlaşmalar aracılığıyla önlemlerin alınacağı, bir uluslararası konferans serisi başlatmıştır. Bu çalışma, bu kapsamda yapılmış olan dört temel uluslararası anlaşmayı (BMİDÇS, Kyoto Protokolü, Kopenhag Uzlaşması, Paris Anlaşması) inceleyerek, uluslararası iklim değişikliği hukukunun değişimini incelemeyi hedeflemektedir. Böylelikle, müzakere sürecindeki tartışmalı noktaları ortaya çıkartacak ve küresel iklim değişikliği rejiminin günümüzdeki durumunu araştırmaktadır.

Çevre, İklim Değişikliği, Gelişmiş ve Gelişmekte Olan Ülkeler.

Introduction

Environment as an issue of international politics is not recent. Since 1950s environmental issues started to become part of international discussions with emergence of several environmental problems of international nature. In parallel with, the necessity for an international cooperation to tackle these environmental problems and need for legislations that can enable this cooperation has already been presented at the first international conference on the environment, the United Nations Conference on the environment of Stockholm in 1972. Among these environmental problems, Climate Change is one of the greatest challenges facing humanity and probably the most crucial in search for a global action because of its nature. Both causes and consequences of climate change are on such scale that necessities cooperation and legislation at global level. In other words, this cooperation could only be possible with development of an international climate change regime through global conventions and agreements. Accordingly, the United Nations Framework Convention on Climate Change (UNFCCC) which is signed in 1992 by 165 countries (today has 197 parties) within the Earth Summit in Rio de Janeiro stands as one of the founding texts of international climate change regime. Since 1992 various negotiations took place under UNFCCC framework to develop effective legislations for mitigating climate change. Throughout regular conferences established by UNFCCC, parties that have signed the convention negotiated to develop a global action against climate change. These efforts have been seriously hampered by a number of disparities between the parties, especially between groups often named as developed and developing countries. While these negotiations gave birth to various agreements, protocols and declarations which constitutes base of international climate change law today, experts argues that disparities between parties are still apparent and hindering further legislations. This paper aims to investigate these negotiation processes and their impact on taking form on international climate change law. In doing so, it will focus on the four main agreements that has shaped global climate change regime so far; UNFCCC, Kyoto Protocol, Copenhagen Accords, Paris Agreement, and their respective negotiation processes. In this way, it intends to offer a brief overview of global climate change regime, to reveal most debated points within the legislations and the current situation. Which in its turn can provide an indication of in what direction global climate regime is unfolding.

I. UNFCCC: Framework of the Climate Change Regime

UNFCCC signed in 1992, at the UN Conference on Environment and Development, namely the Earth Summit, stands as the fundamental text that shapes the global climate change regime. It has entered into force on 1994, after ratification of sufficient number of countries, and holds a broad legitimacy due to its nearly universal membership. It is the initial starting point for the legislations and mechanisms developed under UN structure to tackle climate change. UNFCCC, recognizes climate change as the greatest threat of the upcoming century to human security and well-being, and should be mitigated to prevent its adverse effects.¹ Thus the UNFCCC aims to stabilize Green House Gas (GHG) concentrations in the atmosphere, which is the main cause of human induced climate change. Article 2 of the Convention, declares that the ultimate objective of the Convention and any legal instruments that it may adopt in upcoming years is to limit GHG concentration in the atmosphere at a level “that prevents dangerous anthropogenic interference with the climate system. It will be necessary to wait for this level in sufficient time for ecosystems to adapt naturally to climate change, food production is not threatened and economic development can continue in a sustainable way.²” In this regard, climate change is officially recognized by signatory parties as a global threat that should be mitigated by developing legal instruments that enables international cooperation through UNFCCC framework. UNFCCC establishes also regular conferences that known under the abbreviation of Conference of Parties (COP), where parties of the Convention evaluate the progress in the climate action and work on further international legal instruments and mechanisms to mitigate climate change.³ Therefore, parties of the Convention have met annually since the entry into force of the Convention, since 1995, in COP meetings to assess progress and negotiate necessary measures for further action. Moreover, Article 3 of the Convention established the principles that should guide the negotiations to achieve the objective of the Convention; principle of common but differentiated responsibilities, principle of precautionary actions, promotion of sustainable development and aid to the specific needs of developing countries vulnerable to adverse effects.⁴ In the direction of these principles, and in accordance with respective reports of World Commission on Environment and Development (WCED) and Intergovernmental Panel on Climate Change (IPCC), the fight against climate change has emerged as a development issue over the last decades in the international arena.⁵ We can argue that the UNFCCC has taken into account the inequalities between developed and developing countries in the face of the phenomenon of climate change, with its principle of common but differentiated responsibilities (CBDR). CBDR principle divides the signatory parties of the convention into two groups, developed and developing countries, and attributes them different roles for the climate action.⁶ In other words, as it was also emphasized by the previous scientific reports, UNFCCC recognized that developed/industrialized countries are the historical responsible of GHG concentration in the atmosphere and should take principal actions for mitigating its adverse impacts in other regions of the world, especially in developing countries. In this regard, convention specifies a set of countries which is listed in the annex of the convention as the developed/industrialized countries of the world that should act first to implement necessary measures to reduce their GHG emissions.⁷ Article 4 of the convention, in its first subsection declares commitments that bind all the parties of the convention; such as measuring and reporting periodically their GHG emissions, formulating and implementing national programs to contain GHG emissions, cooperating for adaptation to the impacts of climate change.⁸ While the second subsection of the Article 4, assigns additional commitments to the annex 1 countries for mitigating climate change; such as adopting national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of GHG.⁹ Therefore we can emphasize that governments agreed on primary responsibility of developed countries in the global climate action and differentiated their objectives. Lastly, Article 11 of the convention also envisage to establishment of necessary financial mechanisms for supporting mitigation and adaptation activities against climate change. This article assigns the responsibility of establishment of necessary financial mechanisms and technology transfer mechanisms to regular COP meetings.¹⁰ Ultimately, we can argue that through UNFCCC, signatory parties agreed upon a general legal structure that sets fundamental targets and basis of climate action. In this regard, UNFCCC shows up as a framework convention that sets general direction which enables further meetings to decide how to implement necessary measures.

Experts argue that this was result of long-lasting discussions in the pre-negotiation process of the UNFCCC, which revealed for the first time the disparities between developed and developing countries regarding the climate action. The formal intergovernmental negotiation processes of the UNFCCC began in December 1990, when the United Nations General Assembly established the Intergovernmental Negotiating Committee (INC) of a Framework Convention on Climate Change, to negotiate a convention containing "appropriate commitments" in time for signature in June 1992 at United Nations Conference on Environment and Development (UNCED). For the next fifteen months, the states gathered different sessions in which they discussed intensively the shape of the climate regime.¹¹ In this pre-negotiation process of the UNFCCC, the climate change mitigation debate easily fell into the dichotomy between developed and developing countries. Discussions reflected controversial key points that can be conceptualized in terms of North-South or Developed-Developing countries struggle.¹² The outcome of China's Ministerial Conference on Developing Countries on Environment and Development, the Beijing Declaration which reveals the position of the developing countries, explicitly stated the process of negotiating the climate regime in North-South terms, stating that “currently being negotiated FCCC process should clearly recognize that it is the developed countries that are primarily responsible for excessive GHG emissions, historically and currently... Developing countries must have comprehensive scientific, technical and financial cooperation to cope with the negative impacts of climate change ". So, during the pre-negotiation process the developing countries rightly pointed out the responsibility of the developed countries for the mitigation of climate change as they are the historical responsible for GHG emissions. This main objective of the Bejing Declaration, different roles for developed and developing countries in the global climate action, has been incorporated in the UNFCCC under the pressures from developing countries. On the other hand, with the pressures from United States and petrol producing countries, the UNFCCC did not have any binding commitments on any government to reduce emissions at a specific level within a set timetable.¹³ Ultimately, the UNFCCC has provided commitments - legally non-binding - exclusively for developed countries to stabilize their GHG emissions. The rest of the countries were grouped into non-Annex countries, including developing countries such as China, India and Brazil, with only voluntary commitments. We can argue that with the UNFCCC, climate change has begun to take shape as an international development issue and the divergent position between the two groups becomes evident. Besides this, financial mechanisms were the most controversial issue in the pre-negotiation period. The developing countries, along with India's initiatives, have successfully included a commitment that developed countries provide "new and additional" financial resources to support their sustainable development and to prevent the adverse effects of climate change in these regions.¹⁴ We can argue that, in the presence of these disparities, the parties preferred to have a framework convention that outlines the main principles of the international climate regime and to set the rules and procedures later in the Conferences of the Parties (COP) which will meet regularly to the effective implementation of the Convention. According to Bodansky, these institutions and mechanisms for implementing the convention were also a matter of debate between the two parties in the negotiations. He underlines that developed countries have supported strong mechanisms, while developing countries prefer the approach of a framework convention with regular conferences for international discussions.¹⁵ We can argue that the UNFCCC reflected a carefully balanced compromise on these and other issues but still many of its provisions do not attempt to resolve the disparities. Within the COPs, subsequent discussions of these and other disparities have continued between the two groups. In this perspective, the Convention does not represent an end point, but rather the beginning of the divergent perspectives between the two parties on the formation of the international climate regime.

Hereby we can argue that UNFCCC as a framework convention confine itself by setting fundamental objectives and general principles of the climate action. In this regard, it has manifested political intent and engagement of the parties to tackle climate change within cooperation under UNFCCC structure. But it hands over the establishment and development of necessary mechanisms for the implementation of the convention, to the additional protocols and agreements which will be prepared through COP meetings.

II. Kyoto Protocol: Clarified Targets for Initial Action

The convention came into force in 1994 and a year later, at the first Conference of the Parties meeting in Berlin in 1995, governments had begun to think about the next steps beyond the UNFCCC. COP-1, responding to considerable pressure from the developing countries, decided to establish an ad hoc committee to negotiate a legal protocol by 1997, containing additional commitments for developed countries (Annex 1) to the convention.¹⁶ This committee started to work on a protocol, an international agreement linked to the existing convention which will have stricter demands for GHG emissions. In this regard, the Kyoto Protocol, which was signed in 1997 as the result of the work of this committee, was aimed to enable implementation of the convention. Kyoto Protocol’s major feature is that it has internationally binding emission reduction targets for the world’s developed economies which have accepted it. According to the Protocol, parties decided to that Annex 1 countries specified by UNFCCC should work to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.¹⁷ It has also specified these targets for each country according to their respective engaged contribution in its annex.¹⁸ Moreover, Article 3 specifies the possible actions for achieving these binding targets and offers some flexibility mechanisms through cooperation with developing countries. While Article 3 of the protocol defines this legally binding targets for developed countries, Article 10 of the protocol accentuate CBDR principle and underlines that non-annex countries should also take into consideration and work for mitigation of climate change.¹⁹ Article 11 of the protocol clarified the implementation of financial mechanisms and emphasized the responsibility of developed countries to provide technology transfer and financial resources for mitigation and adaptation activities in developing countries.²⁰ In this respect, we can argue that Kyoto Protocol has defined some of clarified targets for the implementation of the convention. It presents an important first step for the mitigation activities and legal procedures to follow.

Experts underline that Kyoto Protocol also sparked many discussions between the parties during its preparation. Negotiations remained blocked mainly on two issues; the level of emission limitation targets for developed countries and possible mechanisms to enable developed countries to meet their objectives flexibly.²¹ On the first issue, the European Union (EU) and developing countries has proposed relatively strong targets, while other industrialized countries like the United States, Japan and Australia have insisted on weaker targets. The researchers draw attention to this divergence between the two groups of states of developed countries, between JUSSCANZ and the EU. He emphasized that Japan, the United States, Switzerland, Canada, Australia and New Zealand insisted on weak goals and differed from the EU's point of view.²² This north-north confrontation on emission reduction targets was resolved by specifying different emission reduction targets for each part, ranging from an 8% reduction from 1990 levels for the EU, to an increase of 10% for Iceland.²³ On the flexibility debate too, the United States insisted on a different position than the EU and the developing countries. The United States has supported setting up mechanisms that would allow developed countries to achieve their targets through emission reduction projects abroad or through emissions trading between countries. Conversely, the EU and the developing countries argued that domestic action should be the main means to achieve emission reduction targets.²⁴ Ultimately, the Kyoto Protocol was adopted in COP-3 in 1997, imposing a legally binding reduction of global GHG emissions on developed countries by an average of 5%, with specific targets for each country.²⁵ So the main protocol mechanism is the imposition of quantified GHG emission reduction commitments, which are planned on a fixed schedule and are subject to international control, exclusively for Annex 1 countries.²⁶ In this regard, we can argue that the protocol is perhaps the most evident example of the application of the principle of common but differentiated responsibilities, as it has not introduced any binding commitment for developing countries. On the other hand, the Protocol has put in place three flexibilities mechanisms for developed countries to achieve their goals by achieving or acquiring reduction of emissions in other countries; Joint Implementation (JI), Emissions Trading System (ETS), Clean Development Mechanism (CDM).²⁷ CDM allows developed countries to acquire additional emission rights by carrying out GHG reduction projects in non-Annex countries. The OMC operates in a manner very similar to the CDM, but is used for offset projects in developed countries with economies in transition, including Ukraine and Russia. ETS allows Annex 1 countries, which have emission rights - allowable but unused emission allowances, to sell this excess capacity to countries above their goals. So it created an international carbon market to allow Annex 1 countries to trade their emission quotas.²⁸ According to Bodansky, these flexibility mechanisms are the most criticized feature of the Protocol, as it does not oblige states to adopt particular measures but give them the freedom to decide how, where and when to reduce emissions.²⁹ The protocol has given the opportunity to developed countries to achieve their objectives by obtaining emission rights through these flexibility mechanisms, instead of reducing their domestic GHG emission level.

In sum, the Kyoto Protocol (KP) once again underlined the objective of the convention, which aims to prevent the adverse effects of climate change on human security, and emphasized the promotion of the concept of sustainable development. To this end, the KP has set out to define concrete international procedures and rules that provide for economic, financial and commercial mechanisms for mitigating climate change. But the confrontations between the developing countries and the developed countries, which were present even in the negotiation period of the Protocol, are sharpened in the following years and have seriously delayed the entry into force of the Protocol. The United States Senate, in the same year of the signing of the protocol, adopted the Byrd-Hagel Resolution which expresses that the Senate would not ratify the protocol, unless that the developing countries participate significantly in the efforts of mitigation of climate change under a legally binding protocol. This meant that much of KP’s effectiveness relied on the unresolved confrontation between the parties and this resolution questioned the non-binding situation of the developing countries within the KP.³⁰ With the definitive withdrawal of the Bush administration from the KP in 2001, the effectiveness of the climate regime have changed considerably and even the entry into force of the Protocol is suspended by the respect of the ratification clause by parties that in 1990 represented at least 55% of the total volume of emissions.³¹ This refusal also marked the beginning of a gradual decline in ambition to keep the KP at the center of the regime on the climate. It is arguable that since the United States' rejection of the KP, the participation of developing countries in climate change mitigation efforts has been at the center of all discussions within the following COPs. The absence of commitments from major polluters within non-annex countries such as China and India has become one of the main debates of global climate action. On the other hand, the KP negotiations were marked by North-South cooperation dynamic between the EU and the G-77 / China which coincided in the position to promote mechanisms for implementing strong and ambitious emission reduction.³² This momentum for cooperation between European Union and developing countries continued in COP-6 in Bonn and COP-7 in Marrakesh, where the parties negotiated the rules for the operation of the Protocol, especially those of the flexibility mechanisms. In these negotiations, the umbrella group, the informal coalition of developed countries (Australia, Canada, New Zealand, Norway, Russia, Ukraine and United States) continued to seek additional flexibility in fulfilling their commitments. While the EU, supported by China and G77, sought to attract enough consensus for the ratification of the PK to enable its entry into force by overcoming ratification clause.³³ With the Bonn and Marrakesh agreements, the Umbrella group has successfully put in place desired procedures for the flexibility mechanisms and the path to the entry into force of the Kyoto Protocol is finally paved.³⁴ Nevertheless, two more years were needed to satisfy the 55% emissions clause; after a long negotiation process, the Russian Federation finally ratified in 2004 and the protocol formally entered into force in 2005.³⁵ Besides, Marrakesh Accords have established three climate funds under Kyoto Protocol for financing mitigation and adaptation activities in non-Annex countries.³⁶ These financial aids, which are funded through voluntary contributions from Annex 1 countries focused on reducing human vulnerabilities in face of climate change, especially in the least developed countries.

According to researchers, the Kyoto Protocol can be regarded as a significant success for the climate regime if we focus solely on its objectives and targets. But the states that submitted to these commitments within the Protocol, accounted for only about a quarter of global GHG emissions, as the Protocol does not provide binding commitments for developing countries and as the United States which accounts for about 25% of global emissions refused to participate.³⁷ Therefore, both affectivity and sufficiency of the Kyoto Protocol has been largely hampered and questioned. In addition, Protocol set targets for a five-year commitment period from 2008 to 2012. Thus, as soon as the Protocol's entry into force process has been completed, the question has become of what to do after 2012 and official discussions on the post-Kyoto climate regime began.