Book Chapter
Reference
The United Nations Framework Convention on climate change : on the road towards sustainable development
BOISSON DE CHAZOURNES, Laurence
BOISSON DE CHAZOURNES, Laurence. The United Nations Framework Convention on
climate change : on the road towards sustainable development. In: Wolfrum, Rüdiger. Enforcing environmental standards : economic mechanisms as viable means? . Berlin : Springer, 1996. p. 285-300
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http://archive-ouverte.unige.ch/unige:15026
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The United Nations Framework Convention on Climate Change: On the Road Towards
Sustainable Development
Laurence Boisson de Chazournes
Global warming is one of the most serious tbreats to the global environ- ment. Carbon dioxide (CO,) and other greenhouse gase, such as methane and nitrous oxide rcsulting from human activities afe accumulating in the atmosphere to an extent that might have "disastrous consequences if their emission is not reduced.
Severe damage has been predicted if no serious action is taken to address the problem of rising atmospheric concentrations of greenhouse gasesl, It has been alleged that this could result in a warming up to a range of 2 to 5 degrees Celsius by the end of the next century'. The consequences of such a significantly warmer climate would notably be a rising sea leve! that would inundate coastallands and islands, the loss of forest' and wedands,
1 "Greenhouses gases" means those gaseous constituents of the atmos- phere, both natural and anthropogenic, that absorb and re-emit infrared radiation· , Art. 1, para.S of the United Nations Fr~ework Convention on
Climate Change. .
2 See the extensive work of the Intergovernmental Panel on Climate Change (IPCC), established under the auspices of the United Nations Envi- rooment Program (UNEP) and the World Meteological Organization (WMO) whose task was defined as "to provide internationally co-ordinated scientific assessments of the magnitude, timing and potential environmental and socio-economic impacts of djmate change" GA res. 43/53 of 6 December 1988; Intergovernmental Panel on Climate Change: The IPCC Sciemific Assessment (1990) page xi; Intergovernmental Panel on Climate Change: The IPCC Response Strategies (1990); see also Radiative Forcing of Climate Change. The 1994 Report of the Scientific Assessment Working Group of IPCC, Summary for Policymakers, WMOfUNEP, 1994.
286 Boisson de Chazournes
the disappearance of specles and reduction of frcshwater resources, let alone aU human consequences.
These predictions are considered. by sorne as too alarmist, while others regard them as Mere assumptions. This is not the place to enter into 5uch a debate. lt is enough to say that the identification and evaluation of the causes and potential effects of c1imate change are based on solid research and analysisl, even if uncertainty cemains as to its rate and magnitude.
Sorne questions are also raise<! regarding the degree of irreversibility of certain consequences.
The need to bring states to act together to meet the global warming challenge resulted in the adoption of the United Nations Framework Convention on Climate Change' (hereafter, the Climate Change Conven- tion or the Framework Convention). Opened for signature in June 1992, it entered into force on 21.3.1994. The Convention very quickly passed the decisive universa)ity test with more than t 40 States becoming parties to it5• lt opens a new path on the road towards sustainable dev:lopment.
1. The Framework Convention on Cümate Change:
Laying the Foundation for Action
The adoption of the Climate Change Convention constitutes a milestone for both present and future action". Recognizing the necessity to give consideration to the" change in the Earth's climate and its adverse effects"
as th~y are "a common coneern of humankind "7, the Convention requires aetion to be taken in aceordance with its ultimate objective which is:
3 Ibid.
, Text of the Convention in: Ph. Sand" R. Tara,of,ky, M. Weiss (eds.), Documents in International Environmental Law, Principles of International Environrnental Law lIA, 1994,249 et seq.
, As on 31 October 1995,141 states and the European Economic Com- munity were parties to the Climate Change ConventÎon.
6 For an in-depth analysis of the negotiating history of the Framework Convention on Climate Change and its content, see D. Bodansky, The United Nations Framework Convention on Climate Change: A Commentary, The Yale Journal of International Law 18 (1993), 451 et seq.; S. Nilssen Ile D. Pitt, Proteccing the Atmosphere- The Climate Change Convention and its Con- tent, 1994; W Lang and H. Schally, La Convention cadre sur les changements climatiques, Revue générale de droit international public 97 (1993), 321 et seq.
7 Preamble, para. 1, of the Climate Change Convention.
Frarnework Convention on Clirnate Change 287
"to achieve, in accordance with the relevant provisions of the conven- tion, stahiliza!Îon of greenhouse gas concentrations in the atmosphece at a level that would preventdangerous anthropogenic interlerence with the climate system. Sueh a leve! should be aehieved within a time-frame suffieient ta allow ecosystems ta adapt naturally ta climate change, to ensure that food production is not threatened and to enable economie development to proceed in a sustainahle manner"s.
To meet this objective, i.e. to prevent anthropogenic influences on the climate system eaused by emissions of greenhouse gases, will be a very eomplex task. le will entail significam and radical changes in human behaviour in the near future and beyond. Mankind does not have much experience in making long-tecm predictions and commitments such as the ones within the climate change context, nor is mankind accustomed to the self-imposition of stringent patterns of behaviour the impacts of which will only be perceived by future generations at least in a century henee.
This explains bath the legal nature of the Framework Convention and its pioneer character. The instrument sets the parameters for the actions to be undertaken in an acea not yet regulated by intecnationallaw, or cather only partially regulated9. le establishes a legislative proeess, whieh al- though now only in a nascent status, will be developed further through the adoption of additional protocols or other legal instruments
'0.
It rec- ommends a comprehensive approach comprising actions to be initÎated at different levels, in different areas and according ta different time-frames, in order to achieve in an unspecified future an objective that Îs defined in rather general terms due to sorne scientific uncertainties11• In fact, while it was universally agreed that the current lcvel of greenhouse gas emissions could not he considered as safe for the present and future generations, the8 Art. 2 of the Climate Change Convention.
9 See A. O. Adede, International Environrnental Law Digest, Instruments for International Responses te Problems of Environment and Devdopment 1972-1992,1993,28 et seq.; L. Giindling, Protection of the Environment by International Law: Air Pollution, in: W LAng, H. Neuhold, K. Zemanek (eds.), Environmental Protection and International Law, 1991, 9 et seq.; P. Széll, Ozone Layer and Climate Change, ibid., 167 et seq.; R. Churchill and D.
Freestone (eds.), International Law And Global Climat. Change, 1991.
10 See the proposaIs made at the first meeting of the Conference of the Parties in April 1995 in Berlin, Set note 29.
Il On the prevalence of the risk analysis methodologies in the negotiatioo of the Climate Change Convention, see M.
J.
Lalande, The Role of Ri,k Analysis in the 1992 Framework Convention on Climat. Change, Michigan Journal of International Law 1 (1993),215 et seq.288 Boisson de Chazournes magnitude and timing of needed mitigation measures remains a subject of debate. In trus respect, the precautionary approach12-which stresses the need for forecasting and prevention, including the adoption of potentially costly measures-is of cardinal importance within the framework of a convention which only enunciates a very weak commitment regarding stabilization and contains no specifie commitment on the reduction of eroissions of greenhouse gases. In fact, among the principles to guide the Parties, it is stated that:
"The Parties should take precautionary measures te anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects.
Where there are mreats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures ta deal with climate change should be cost-effective so as to eosure global benefits at the lowest possible cost ( .. .)"13.
The global character of the climate change issue is also an importantfearure of the Convention. The greenhouse effect could not be addressed by the states acting in isolation. States were therefore aware of the fact of being compelled to collaborate at the universallevd in order to achieve the aim of the Convention. In the meantime, there was the willingness to collabo- rate although certain states or groups of states, apprehensive to go too far, displayed their resistance. Many economic and political interests were at stake, in particular those related to energy production and consumption, the use of narural resources (such as oil and forests) and the specific vulnerability of certain countries (such as the small island countries). It was fdt by sorne states that if a legislative process needed to be launched, it should not be at the cost of their interests14• This explains partly the somewhat loose content of the Framework Convention, making it more programmanc and institution-building oriented than. prescriptive. The
12 See]. Cameron, The Precautionary Principle: A Fundamental Principle of Law and Poliey for the Protection of the Global Environment, Boston College International & Comparative Law Review 14 (1991), 1 et seq.; L.
Gündling, The Status in International Law of the Principle of Precautionary Action, International Journal of Estuarine & Coastal Law 5 (1990),23 et seq.;
H. Hohmann, Precautionary Legal Duties and Principles of Modern Interna- tional Environmental Law, 1995.
13 Art. 3, para.3, of the Climate Change Convention.
14 Bodansky, see note 6, 474 et seq.; Ph. Sands, The United Nations Framework Convention on Climate Change, Review of European Commu-
nit y & International Environmental Law 3 (1992),271 et seq.
li
Frarnework Convention on Clirnate Change 289
Convention contains broad guiding principlesl5, as well as genera! com- mitments16, and the Parties have great flexibility in choosing the ways and means to implement them17.
Ail Parties are requested to provide national inventories of greenhouse gases, to carry out national programmes to reduce greenhouse gas erois- sions and to provide jnformation on them18• This information-scheme will help to assess and monitor the implementation of the Convention as
regards the achievement of the objective of the Convention, i.e. a modifi- cation in emission trends, and will underline the need to advance funher.
lt is part of an on-going proce .. which, it is hoped, will lead to the launching of new norms. As will be seen further down, developed coun- tries (OECD countries and countries with economies in transition, e.g.
the Eastern European countries), in addition to the aforementioned gen- eral commitments, are further subject to so-called specifie commitments.
The Climate Change Convention recognizes that the measures to be adopted should be integrated with social and economic development considerations, thus providing for sustainable development. Moreover, whereas it was agreed that the international community shares a common responsibility for the protection of the global atmosphere, it has been also admitted that developed countries and developing countries have different responsibilities, the former being responsible for the bulk of the present atmospheric stock of greenhouse gases. As clearly stated in Art. 3 para. 1:
"The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly; the developed country Parties should take the lead in combating climate change and the adverse effects thereof".
Art. 4 of the Convention reflects this concept of differentiated responsi- bilities. Developed couneries assume specifie commitmenrs. Art. 4, para.2, provides that OECD countries and Eastern European countries shall adopt and report on national policies ta limit emissions of greenhouse gases that arc not controlled by the Montreal Protocol and enhance sinks"
15 Art. 3 of the Climate Change Convention
16 Arts. 4, para.l, 5 and 6, of the Climate Change Convention
17 M. Zammit Cutajar, The FCCC experience, in: W. Lang (ed.), Sustain- able Development and International Law, International Environmental Law and Policy Series, 1995, 45.
18 Art. 4, para.t, and Art. 12, para.l, of the Clirnate Change Convention.
19 "Sink" means any proccss, activlty or mechanism which remaves a
290 Boisson de Chazoumcs
"with the aim of rerurning individuaUy or ;ointly to their 1990 levels" by the end of the present decade. Although Art. 4 is generally considered as a stabilizanon commitment, its legal formulation is, to say the least, very ambiguous. It only commits the devdoped countries "to look to the rerurn" by the year 2000 to their 1990 levels of anthropogenic emissions of greenhouse gases20 and leaves rcom for various interpretations as regards the ways of ilS implemention21.
The industri.lized countnes ,hould .Iso proteet greenhouse gases sinks and reservoirs22, and provide information in addition to the national inventories of greenhouse gases. Moreover, they should include in their communications a detailed description of the policies and measures that
they have adopted co implement their commitments under Art. 4, paras.
2 (a) and (b), and a specifie estimate of the effects of these policies and measures on anthropogenic emissions of greenhouse gases2J.
The principle of common but differentiated responsibilities also finds application through the provisions requiring developed countries to pro- vide new and additional resources2-4 and to facilitate transfer of technolo- gies on bcneficial terms25 to developing countries. In trus context, the Global Environment Facility (GEF)-which is administered through a tripartite arrangement between the World Bank, UNEP and the United Nations Development Programme (UNDP)- has been entrusted with the operation of the financial mechanism for implementmg the Climate Change Convention26.
greenhouse gas, an aerosol or a prccursor of a greenhouse gas from the atmospherc" and "'source" mcans any proccss or activity which releases a greenhouse gas, an aerosol or a precursor of a greenhouse gas ioto the at- mosphere", An. l, paras.8 and 9 of the Climace Change Convention.
20 Adede, see nOte 9, 32.
21 It has bun said that the Cerm "return" "does not bave an ongoing temporal dimension. ( ... ) An. 4 (2) simply states ,hat developed countries recognize that a retuTn by the year 2000 tO earlier (unspecified) emissions levels would contribute to a modification of longer-term emissions trends", D. Bodansky, The United Nations Framework Convention on Climate Change: A Commentary, in: Ph. Sands (ed.), Greening International Law, 1994,216.
22 An. 4, para.2 (a) and (b), of ,he C1imate Change Convention.
21 Art. 12, para.2 (a) and (b), of the Climate Change Convention.
24 Art. 4, para. 1, 3 and 4 of the Climate Change Convention.
2S Art. 4, para.5 of the Climate Change Convention.
26 Art. Il of the Climate Change Convention. See Instrument for the Establishment of the Restructured Global Environment Facility, Interna- ,ional Legal Materials 33 (1994), 1278 et seq. On the relationship between the Conference of the P3nies of the Climate Change Convention and the GEF,
Framework Convention on Climate Change 291 Nothing in the Climate Change Convention prevents greenhouse gas emissions in the developing countries from exceeding thase of the indus- trialized countrie;7. However, it is clear that the developing countries will, in the future, assume enhanced. responsibilities in the control of emission increases, in order to achieve the objective of the Convention which is common to aIl the Partiesl'. The precautionary approach wou Id, at lea5t, require stabilization ata given level on their pan, taking into consideration the diversity and heterogeneity prevailing among them. IncrementaI COSts incurred in fulfilling "addi,ional" obligations would be covered by ,he provision of financial resources and of sound ,echnology as provided for by the Framework Convention.
Even if presently commitments are, in sorne respects, weakly defined, it is envisaged to take appropriate actions in the future ta reinforce them.
This process was already ini,iated at ,he firs, mee,ing of the Conference of ,he Parties, in April 1995, in Berlin. A Conference decision provides ,he ground ta negotiate an additional protocol or another legal instrument that would s,ipulate future 'argets and tÎmetables for greenhouse gas emissions in developed countries for ,he post-2000 period".
As can be seen, the Clima'e Change Convention lays down the foun- dations of a "communitarian house" which is still in a preliminary stage.
The foundations have been designed but remain to be con5tructed in accordance with plans which have been diseussed and adop,ed, but need
see
J.
D. WeTksman, Greening Bretton Woods, in: Sands (ed.), see note 21, 81 et seq.; Guidance on Programme Priorities, Eligibility Criteria and Policies and on the Determination of Agreed Full IncrementaI Costs, Report of the Global Environment Facility ta the Conference of the Parties on the devel- opment of an operational strategy and on initial activities in the field of climate change, UN Doc. FCCC/CPI1995/4, 16 March 1995.27 Many projections reveal emissions from developing countries alone surpassing ,hose by OECD by 2020-2030, The World Bank and ,he UN Framework Convention on Climate Change, The World Bank, Environment Department Papers, 2.
28 Zammit CutajaT, see note 17, 47.
29 Sec Decision l/CP.l, "The Berlin Mandate: Review of the adequacy of Art. 4, parageaph 2 (a) and (b), of the Conven,ion, including proposais rela'ed to a protocol and decisions on follow-up", UN Doc. FCCC/CPI1995/7/
Add.l, Report of the Conference of the Parties on its first session, held at Berlin from 28 Mareh
'0
7 April 1995, 4-6. The negotiating proeess should be completed as early as possible in 1997, with a view to adopting the results at the third session of the Conference of the Parties. See S. Oberthiir & H. Ou, Framework Convention on Climate Change: The First Conference of the Parties, Environmental Policy & Law, 4/5 (1995), 145-146.292 Boisson de Chazournes
to be further elaborated. More eHons are required in order to tackle eHectively the greenhouse eHect challenge.
In this contexl, il seems likely that the (rade measures will be used increasingly as instruments accompanying a paI1îal phasing out of green- house gas emissions agreed upon by the Panics. This would naturally raise the question of the interactions berween environment and trade, and more specificaUy the compatibility of trade measures addressing the climate change problem with the World Trade Organization Agreements (hereaf- terWTO).
2. Trade and Climate Change: The Terms for a
"Stand-still" Coexistence
The Climate Change Convention, like Many environmental instruments, presents Many interfaces with the international economic system. In general, although the economic incennves and measures May he fruidul in ensuring the effechveness of environmental agreements, they May never- theless prove ta be al the origin of sorne tensions due to certain "'conflicts of interest" between the market-oriented and free-trade rules and the environmental norms}(). However, the increasing awareness of links be- tween environment and trade should not be prim.rily and essentially understood in antagonistic terms. As practice shows, there is room for integratÎve and/or innovative approaches31•
The Convention contains various economic components in the state- ment of the principles and commitments, for examplc, "the right to ( ... ) promote sustainable development"32 or inviting developed countries "to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and know-how to other Parties, panicularly dcveloping country Panies ( .. )"33. Morcover, its implementa- tion relies, to a large extent, even if not yet conventionally agreed upon, on the possible cesort to economie tools, such as the imposition of a tax on CO2 emissionsH or a system of tradeable entitlements for COl emÎs-
30 See Th. Schiinbaum, Free International Trade and Protection of the Environment: Irreconciliable Confliet?, American Journal of International Law 86 (1992), 700 et seq.
31 W. Lang, Les mesures commerciales au service de la protection de l'environnement, Revue Générale de droit international public 99 (1995), 545 et seq.
32 Art. 3, para,4 of the Climate Change Convention.
l3 An. 4, para.2 (5) of the Climate Change Convention.
34 Sec the EEC Commission proposaI for a Council Directive introducing
Framework Convention on Climate Change 293 sionsJ5 • As within other conventional frameworks such as the Montreal Protocol on Substances that Deplete the Ozone Layer" or the Base!
Convention on the Control of Transboundary Movements of Hazardous Wastes and their DisposaP7, the use of trade measures as means of inducing the states to comply with their commitments could be envisaged. Such measures could consist of uade restricting provisions regulating the rela- tionship between the Parties to the Convention or of trade rcstricting measures applied ta non-Panies. Trade measures could also be resorted to on a unilateral or a collective basis as enforcement rneans to bring astate to comply with its obligations3'.
The Climate Change Convention implies a number of interactions with the trade system. However, it does not yet provide for any recourse to either of the above-mentioned mechanisms. Nevertheless, during the negotiations, sorne countries, especially developing countries, expressed their concem about the possibility of raising trade barrîers for climate protection reasons. Such cauntries feared, for example, that the Climate Convention would soon include a "Montreal ProtocoI" type of scherne, i.e. a Multilateral non-compliance regime39, leaving room for trade meas- ures as enforcement tools·o. They were also concerned not to be the targets of abusive unilateral sanctions, notably against states using so-called envi-
a taX on carbon dioxide and <n<rgy, COM (92) 226 final; M. Düerkop, Trade and Environment: International Trade Law Aspects of the Proposed EC Directive lntroducing a Tax on Carbon Dioxide Emissions and Energy, Common Market Law Review 31 (1994),807 et seq.
3S Combating Global Warming - Possible Rules, Regulations and Ad- ministrative Arrangements for a Global Market in CO2 Emission Entitle- ments, United Nations Conference on Tradc and Development, 1994, 105.
36 Sand" Tara,of,ky, Wei .. (eds.), see note 4, 189 et seq.
37 Ibid, 1075 et seq.
38 On the array of trade measures sec D. Goldberg, The Framework Convention on Climate Change, in: R. Housman etai. (cds.), The Use ofTrade Measures in Select Multilateral Environment Agreements, UNEP Environ- ment and Trade Series No. 10,1995,93 etseq.ltshould be noted that "limiting trade in the vast universe of technologies that exacerbate climate change, however, would be a much more difficult undertaking than restricting trade in endangered species or ozone-depleting chemicals" (page 98).
39 Bodansky, see note 6, 547.
40 On this mechanism, see M. Koskenniemi, Breach of Treaty or Non- Compliance!, Reflections on the Enforcement of the Montreal Protocol, Yearbook of International Environmental Law 3 (1992), 123 etseq.; L Boisson de Chazournes, La mise en oeuvre du droit international dans le domaine de la protection de l'environnement: enjeux et défis, Revue Générale de droit international pub~c 99 (1995), 32 et seq.
294 Boisson de Chazournes
ronmentally unfriendly production methods·'. The adoption of the Cli- mate Change Convention, even in its status nascendi, did not reassure these countries, compelling them to ask for the insertion of a "GATT-compat- ible clause". This clause was included as one of the guiding princip les of Art. 3 of the Climate Change Convention.
It was originally drafted as follows:
"6. States shall promote an open and balanced multilateral trading system. Except on the basis of a decision by the Conference of the Parties which should be consistent with GATT no country or group of countries shaH introduce barrîees to trade on the basis of daims related to climate change.
7. Measures taken to combat climate change should not introduce trade distortions inconsistent with the GATI or hinder the promotion of an open and multilateral trading system"42.
ln the final texc, Ît became:
"5. The Parties should cooperate to promote a supportive and open international economic system chat wou Id lead ta sustainable economic growth and development in ail Parties, particularly developing COUntry Parties, thus enabling them better to address the problems of climate change. Measures taken [0 combat climate change, including unilateral ones, should not constitute a means of arbitrary or injustifiable dicrimi- nation or a disguised restriction on international trade"·B.
The
inclusion of a "GATI-compatible clause" in an environmenw agree- ment Îs an innovative process. As such, the Climate Change Convention is the first instrument of this kind chat contains such a provision. None of the other multilateral environmental agreements (MEAs), and notably those which provide for the use of trade measures, contains a provision that intends to c1arify the relationship with free-trade principle •.However, the wording of chis principle is rather general. The insertion of such a provision comforted both those who feared the raising of un justifiable trade barriers, and those who did not want any specifie rderence to GATT because of its alleged hostility to environmental
41 On this issue, see M. Reiterer, The International Legal Aspects of Proce.s and Production Mechod., World Competition 17 (1994), 111 et seq.
42 Report of the Intergovernmental Negotiacing Committee for a Frame- work Convention on the Work of it. Fourth Session, UN Doc. A/AC.237/15 (1992),28.
4J Art. 3, para.5 of the Climate Change Convention.
, !
Framework Convention on Climate Change 295 concerns. les pacificatory virtue was reinforced through an c'incantaeory"
sort of process, which led ta the insertion of similar provisions in various UNCED instruments, such as the Rio Declaration on Environment and Development (Art. 12)'" the Agenda 21 <5 and the Non-Leg.lIy Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests (principles 13 and 14)".
This provision, which is pattly based on the wording of Art. XX of the General Agreement'f7, is cather neutraJ because of its general character. No specification is given to clarify wruch trade rneasures would consritute a means of arbitrary or injustifiable discrimination or a disguised restriction on international trade. Even understood as a stand-still provision which would freeze the resort to potential illegal measures, it is silent on the nature of those measures. The least that May be said is that this question fits in a wider debate on the interdependence of trade and environment issues48. In principle, the answers to be given in the framework of the Climate Change Convention would draw on the more general context of this interdependence.
2.1. Unilateral Trade Measures as Enforcement Tools:
Unilateralism Versus Multilateralism
Ir should also be stressed that the Climate Change Convention has certain peculiarities which have ta be taken into account when assessing the use of trade rneasures as enforcement means. The climate change challenge is of a global nature which encompasses global interactions between a huge set of environmental and economîc factors49• The necessity to tackle the issue in a comprehensive manner tends to blur the traditional distinction
.. Sands, Tarasofsky, Weiss (eds.), see note 4, 52.
45 Chapter 2, International cooperation to accelerate sustainahle develop- ment in developing countrÎes and related domesric policies. para,2.19 and 2,20, UN Doc. AlCONF.151126 (Vol. 1).
46 Sands, Tarasofsky, Weiss (eds.), see note 4, 880 .
., General Agreement on Tariffs and Trade, UNTS, Vol.55 No. 814.
.. In this context, the GATT Tuna-Dolphin Panel Reports should not be given too much weight (DS21/R (September 1991) and DS29/R Gune 1994)), International Legal Materials 30 (1991), 1594 et seq. and 33 (1994), 839 et seq.
They dealt with a rather specifie issue and evaluated the GA TI compatibility of a particular trade measure.
49 Among others, the world economy is to a great extent dependent on greenhouse gas-related products and technologies, Goldbeyg, see note 38,109.
296 Boisson de Chazournes between the domestic and the international concerns. In fac!, the climate change affects ail Parties collectively, making therefore the notion of common interest more and more significant. The result is a tension between the principle of non-intervention, i.e. the right of every state to conduer its own affairs without any outside interfeeence, on the onc hand, and the protection of global commons, on the other. ln this contex!, the risk of an abusive recourse to unilateral sanctions to proteer the global climate is high, as each state could daim that harm has been caused to its own interests50. This issue, however, is far tao complex in its ecanomie and scientific aspects to be handled through sorne rudimentary means, 5uch as unilateral sanctions. In addition, the states are not aU in 5uch politicaI, social and ecanomie positions that would allow them to act as the protector of global interests which might be impaired by another stateS1 ,
There is therefore a crucial need to design a multilateral compliance regime52 in order to avoid the use of discretionary measures which would defcat the purpose of the Convention. Unlike. traditional dispute se!tle- ment procedures, such a compliance regime should be non-adversarial with the objective of promoting both the respect of the Climate Change Convention and cooperation among the Parties to resolve implementauon problems. Consensus and f1exibiliry should be the main features of this kind of procedure which essentially focuses on negotiations. However as a final and ultimate resort, if an acceptable seulement could not be achieved, the Conference of the Parties cou Id authorize the exercise of countermeasures. Preferably, these sanctions would have to be exercised
SO R. Wolfrumt Purposes and Principles of International Environmental Law, German Yearbook of lnternanonal Law 33 (1990), 330.
SIOn the leverage in resorting to economie countermeasures and obsta- cles deriving from a structural imbalanee between states, see L Boisson de Chazoumes, Les contre· mesures dans tes relations internationales économiques, 1992, 119 et seq.
'2 The regime would be based on Art. 13 of the Climate Change Conven- tion. Reservations from developing countries prevented the insertion of such a mecharusm in the Convention. However, this question is on the agenda of the Conference of the Parties (see Consideration of the establishment of a multilateral consultative process for the resolution of questions regarding implementation (Art. 13), Note by the Interim Secretariat, UN Doc.FCCC/
CPII995/Misc.2 (22 March 1995 )). The first meeting oftbe Conference of the Parties in April 1995 decided the establishment of an ad hoc open-ended working group of techoical and legal experts to srudy a11 issues relating to the establishment of a multilateral consultative process and its design, Decision 20/CP.l, UN Doc.FCCC/CP/1995/7/ Add.l, Report of the Conference of the Parties on its first session, held at Berlin from 28 March to 7 April 1995, 59.
Framework Convention on Climate Change 297 within the Climate Change Convention, the undedying idea being that the pressure would be exereised on astate through the eurtailment of the benefits arising from cooperation. Therefore, if the enforcement measures need to be resorted to, they are to be first authorized by the states eolleetively. This kind of regime has the advantage of avoiding the side effects of unilateral measures exercised at the discretion of a state. As far as the authorized enforcement measures are concemed, their possible ineonsistency with the
wro
commitments should be eonsidered as a legitimate derogacion, since they would originate from a collective deci- sion of the Conference of the Panies.2.2. A PIea for the Adoption of International Standards
Many problems may arise with trade measures53 playing an increasing role
in the design of national strategies in order for states to comply with targets and timetables. They may be challenged in the WTO forum, in particular, because of their alleged un justifiable discriminatory character". While states might invoke the Art. XX of the General Agreement as a legal basis for the application of trade-related environmental measures (TREMs), it is likely that in many cases thase measures would not meet the trade-ori- ented requirements of that provision55.
One way of resolving these potential conflicts is the adoption of international standards-which so far has not been done-within the framework of the Climate Change Convention". National policies com-
53 Measures such as the encouragement to alternative fuel vchic1es and incentives to electrical ucilities to improve efficiency.
54 See, for exarnple, United States- Taxes on Automobiles, Report of the Panel (DS 31/R) of October 1994 (not yet adopted). See E,U. Peter,mann, International and European Trade and Environrnental Law after the Uruguay Round, 1995, 123 etseq.
" Art. XX Cg) of the General Agreement reads as follows: "Subjeet to the requirement that such measures are not applied in a manner which would constitUte a means of arbitrary or un just if jable discrimination between coun- tries where the same conditions prevail, or a disguised resmction on interna- tional trade, nothing in trus Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: ( ... )
(b) necessary to proteet human, arumal or plant life or health; ( ... )
(g) reJating to the conservatÎon of exhawtible natural resources if 5uch meas- ures are made effective in conjunction with restrictions on domestic produc- tion or consumption; ( ... )".
56 For a proposaI to establish a joint negotiating group responsible both to the WTO Council and the Climate Change Conference of Parties, sec R.
298 Boisson de Chazournes plying with those international standards would gain in legicimacywithin the WTO as they should be presumed • not to constitute a means of arbitrary or un justifiable discrimination or a disguised restriction on international trade" a, required by Art. 3 of the Climate Change Conven- tion. This would, for example, be the case with the adoption of energy cfficiency standards, assuming, of course, that the Conference of the Parties would be sensitive to WTO rules when elaborating those stand- ards57. The adoption of commonly agreed upon international standards would complywith the precautionary approach which require, the action, ta be taken ta anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects.
3. Concluding Remarks: Financial Resources, Transfer of Technology and Joint Implementation
Trade and environment policics should be mutually supportive in achiev- ing an environmentally sustainable development. This aim however will not be achieved without financial aid and tran,fer of technology, especially for developing countries. These clements arc crucial in order to enable 5uch countries to meet the objective of the Climate Change Convention. In- deed, this has explicitly been stated in the Convention which establishes a link between the provision of financial resources by developed countries and the fulfilment of treaty commitrncnts by developing countries. It says:
"The extent to which developing country Parties will effectively imple- ment their commitments under the Convention will depend on the effective implement.tion by developed country Parties of their com- mÎtments under the Convention related to financial reSOUTees and transfer of technology and willtake fully into .ccount that economic and social development and poverty eradication are the first and over-.
riding priorities of the developing country Parties"58.
Clémençon, Global Climate Change and the Trad. System: Bridging the Culture Gap, Journal of Envuonment & Development 4 (1995), 45.
57 See the proposaI introduced by the European Union for a protocol that would indude mandatory actions for OECD countries. These actions may include international carbon taxes and efficiency standards, WorJd Environ- ment Report, November 22, 1995,212.
sa Art. 4, para.7, of the Climate Change Convention. The same type of provision has been included in the Montreal Protocol on Substances that Deplete the Ozone Layer, Art. 5, para.5 and in the Convention on Biological Diversiry, Art. 15, par •. 5 (Sands, TaTasofsky, Weiss (eds.), see note 4,845 et
Framework Convention on Climate Change 299
This provision should not be understood in strict reciprocal terms that would provide for an «automatic delinkage" to the benefit of a single state.
The implementation of the Convention is a common concern of ail Parties and requires a holistic approach in ass<ssing the rights and obligations of the states. Should the mechanisms relating ta the financial resources and the transfer of technology be not implemented eHectively, it would allow the developing counmes ta· challenge collectively the overall climate change process, as there would no longer be ·common but differentiated reponsibilities" among the Parties to the Convention.
Joint implementationS9-a mechanism still under discussion within the Climate Change Convention framework6°-could encourage the transfer of financial resources and of environmentally sound technology from the OECD countries ta the developing countries as weil as ta· the countries with economies in transition. It should be pursued according te commonly agreed criteria61.
One of the core issues currently discussed by the Parties is to determinc if activities implemented jointly should only be understood as additional and supplemental means of implementing the Convention or if they could al.o be linked to the fulfilment of mitigation targets by developed coun- tries as provided for by the Framework Convention. Regardless of the option taken, the requirements of financial assistance and technology transfer should be part of the instruments designing a joint implemcntation scheme. By the same token, this could encourage the developing countries
seq.).
59 Joint Implementation is referred to in Art. 4, para.2 (a), which states that developed countries "May implement such polieies and measures jointly with other Parties in contributing to the achievement of the objective of the Convention ( ... )".
60 The Conference of the Panics has decided at its first meeting to establish a pilot phase for activitie. implemented jointly among Annex I Parties (0 ECD couotnes and Eastern European countries) and, on a voluntary basis. with non-Annex I Parties that sa request, Decision S/CP.I, UN Doc. FCCC/
CP/19951 Add.l, Report of the Conference of the Parties on its first session, held at Berlin from 28 March ta 7 April I99S, 18 et seq. For an appraisal 01 legal and institutional issues associated with establishing a global system of joint implementation, see F. Yamin, The Use of Joint Implementation to Increase Compliance with the Climate Change Convention: International and Institutional Questions, Review of European Community & International Environmental Law, 1993, 348 et seq.
61 On possible criteria for joint implementation activities, see UN Doe.N AC.237/49 (17 January 1994) (Note by the Interim Secretariat) and UN Doc.AlAC.237/MISC.44 (7 December 1994) (Comments from Parties or other member States- note by the Interim Secretariat).
300 Boisson de Chazournes
ta decrease the burning of fossil fuels. This decrease is of paramount importance for favouring the "stabilization of greenhouse gas concentra·
tions in the atmosphere at a level tha, would prevent dangerous anthro- pogenic interterence with the climat< system". The burning of fossil fuels 15, in fact, a major source of releasing greenhouse gases and thus, new cooperative methods should be envisaged in ocder ta favoue the decrease of such cmissions. The joint implementation when negotiated under commonlyagreed standards could help ta reduce compliance COS" while increasing the Flow of financial and technologic.l resources.
Global warming is a challenge f.cing the next century that has to be seriously addressed before the end of this century. The adoption of the Framework Convention on Climate Change was an irnponant step for- ward". lt laid the basis and the frame for more stringent measures to be adopted through a process which requires fairness, dynamism, creativity and trust in the future. In the climate change context, the future rnay be perceived as President Roosevelt viewed the future fifty years ago: "The only limit ta our realization of tomorrow will be our daubts of today".
62 R. Gardner, Negotiating Survival, Four Priorities after Rio, 1992, 38.
