1. What is the meaning (in terms of what it refers to) of “adequacy” in UNFCCC Art 4.2(d) in the context of the requirement for regular reviews, as expressed in the last sentence?

2. What is the relationship between the scope of the reviews referred to respectively under Arts 4.2(d) and 7.2 UNFCCC ?

3. Is the meaning of Art 4.2. (d) or the scope of any obligation thereunder affected or informed by the requirement under Art 7.2. to keep under review the implementation of the Convention (and, if so, how and to what extent) ?

Summary:

There is no single interpretation of the meaning of “adequacy” in this context which is why the issue has been held in abeyance for so many years. In our view, there are a number of possible interpretations.

Advice:

Background to Art 4.2(d)

As noted in the background to Item 6 of the COP 16 agenda (FCCC/CP/2010/1), the issue of what was intended to be reviewed under Art 4.2(d) has not been agreed since the first review under the Art 4.2(d) which resulted in the Berlin Mandate and subsequently the Kyoto Protocol.

During the first review, a dispute arose as to whether the review under 4.2(d) could include a “re-opening” of the issue of developing country commitments. The Berlin Mandate (the first review) excluded the possibility of developing country commitments being included as a result of that review but did not seek to limit any future reviews.

At COP 4, the issue of whether additional developing country commitments should be included in the review was raised but no agreement was reached.

At COP 7, the G77 and China proposed to amend the agenda item title from “review of the adequacy of article 4.2(a) and (b)” to read “review of the adequacy of implementation of Article 4.2(a) and (b)”. This proposal was not accepted by Annex I countries and no agreement was reached and the agenda item was deferred to COP 6. The agenda item continued to be deferred (ultimately until the current COP 16) because no agreement could be reached on the meaning of the phrase “review of the adequacy of article 4.2(a) and (b)”. However, a process relevant to a future agreement was launched at COP 11 (Dialogue on Long Term Cooperative Action to Address Climate Change which was neither legal binding nor was it authorised to open up the issue of further commitments see FCCC/CP/2005/Add.1), out of which the AWG-LCA was later formed at COP 13.

Meaning of “adequacy” in the context of Art 4.2(d)

The ambiguity of what is meant by “the adequacy of article 4.2(a) and (b)” arises because the paragraphs to be reviewed relate to commitments which, in accordance with the wording in Article 4.2(a), are limited to Annex I countries, and yet the reviews of the adequacy of paragraphs 4.2(a) and (b) are to continue until the objective of the Convention is met. This seems to imply that the purpose of the review is to provide a flexible mechanism by which the Conference of the Parties can quantify and subsequently adjust commitments and other measures in order to meet the objective of the Convention. But does that (and should that) extend to Parties not in Annex I and does it necessarily require an assessment of the implementation of the commitments?

Unfortunately, the historical political division in relation to this issue makes the interpretation of the meaning of adequacy difficult. This is because a number of the techniques of interpretation of treaties at international law require that:

(a) a treaty be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of the treaty’s object and purpose (Vienna Convention on Law of Treaties, Art 31);

(b) recourse may be had to supplementary means, including preparatory work of the treaty and the circumstances of its conclusion if the interpretation resulting from applying the above (principles) results in a meaning which is ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable (Vienna Convention on Law of Treaties, Art 32); and

(c) international tribunals have determined that “good faith” encompasses the principle of “effectiveness”, that is interpretation should result in making the treaty “effective”.

Because the issue of non-Annex I country commitments apparently influenced the drafting of article 4.2(d), it could be argued that a wide interpretation of “the adequacy of article 4.2(a) and (b)” should be applied. A wide interpretation of “the adequacy of article 4.2(a) and (b)” could include a review of whether or not mitigation commitments which are required to meet the objectives of the Convention should be limited to Annex I countries in circumstances where that list does not include all countries that are or will be in the near and medium term future, significant contributors to global greenhouse gas emissions. Ultimately, the objective of the Convention is to “prevent dangerous anthropogenic interference with the climate system” which requires all Parties to take action. A rigid distinction between Annex I/non-Annex I could be regarded as contrary to the Convention drafters’ intention (particularly in light of other processes such as the review of Annex I under article 4.2(f) and the simplified Article 16 amendment procedure).

On the other hand, a more literal (and narrower) interpretation which does not take into account any supplementary information, would limit the review of ” the adequacy of article 4.2(a) and (b)” to the actions of Annex I countries and this, in our view, necessarily requires a review of these actions (proposed and implemented) in the context of the best available science. In other words, the adequacy of the actions is to be assessed in terms of whether it meets the levels of action that the science indicates and predicts is necessary to meet the Convention’s objective (this is so, whether or not a wide or narrow interpretation is applied but in the wide interpretation it is not the only issue under review).

It seems to us that there remains room for argument of both positions in relation to this issue, which is why it remains an outstanding agenda item. This question goes to the heart of the “political sensitivity around new commitments for developing countries and holding developing countries to account for existing ones” .

We refer you to document FCCC/CP/1998/MISC.6 which provides some useful background to various party positions in relation to the interpretation of “adequacy”. Please see: http://unfccc.int/resource/docs/cop4/misc06.pdf .

Interrelationship and scope of the reviews referred to respectively under Arts 4.2(d) and 7.2 FCCC

The action to be taken under Article 7.2 is wide-ranging and relates to “the implementation of the Convention and any related legal instruments that the Conference of the Parties may adopt.”

Under Articles 10.2(a) and (b), the SBI is, in fact, mandated to consider the information communicated by the Parties in accordance with Articles 12(1) and (2). On this basis, the COP has adopted procedures for considering and reviewing national communications and GHG inventories (i.e. compilation and synthesis; in-depth review and expert review teams; technical review). Therefore, in our view, the COP is effectively continually “assessing” (art 7.2(e)) and “periodically examining” (art 7.2(a)) (i.e. regularly reviewing the implementation of the Convention). In this regards the COP has an abundance of information which it examines and reviews and upon which decisions could (and are) taken in relation to the effective implementation of the Convention.

In contrast, the review referred to in Art 4.2(d) is narrower in scope and, in our view, additional to the more overarching review contemplated by Art 7.2.

Art 4.2(d) is a specific obligation on the COP to review the adequacy of developed countries’ and Annex I Parties’ compliance with Articles 4.2(a) and Art 4.2(b). Article 4.2(a) places a specific obligation on these Parties to adopt national policies and measures in relation to the mitigation of climate change towards achieving the ultimate objective of the Convention: the “stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. Art. 4.2(b) is also more focused in terms of its obligations on the Parties; it requires that the Parties communicate detailed information on the policies and measures created pursuant to Art. 4.2(a) “within six months of the entry into force of the Convention for it and periodically after”. Therefore, the review under Art. 4.2(d) is limited to consideration of these matters and the information it considers will be limited to documents relevant to these matters.

In addition, Art 4.2(d) requires quite specific action (certainly in relation to the first review), whereas the action to be taken under art 7.2 is more vaguely worded.

Any review undertaken in relation to Art 4.2(d) would serve to inform the COP in its overarching review under Art 7.2, but it would not be accurate to say that it would “trigger” a review under Art. 7.2 for the reasons above.