This article originally appeared in
Volume 24 Number 24
Wednesday, November 21, 2001   
                                                          Page 1009  
ISSN 1522-4090
    Leading the News


Climate Change
Kyoto Negotiators Reach 11th-Hour Accord;
Pact Ready for Ratification by Governments


    MARRAKECH, Morocco--Eleventh-hour concessions to Japan and Russia finally concluded negotiations
    on implementation of the Kyoto Protocol on climate change Nov. 10, allowing many national governments and
    legislatures to move toward ratification of the accord.

    Final negotiations involving the more than 160 national delegations in attendance extended hours beyond the
    scheduled Nov. 9 close for the talks--which were known officially as the Seventh Conference of the Parties to
    the U.N. Convention on Climate Change (COP-7)--when negotiators said Japan and Russia refused to budge
    on key points involving compliance and flexibility mechanisms such as emission trading, respectively.

    The Kyoto Protocol seeks to reduce the amount of greenhouse gases produced by 40 industrialized countries
    by 5.2 percent by 2012 compared to a 1990 baseline year.

    In the end, both Japan and Russia got what they wanted, and the four-year process to finalize the rules of the
    protocol ended.

    According to officials who participated in the talks, Japan held out to have the decision on the consequences of
    noncompliance put off until after the 1997 pact goes into effect, a stance that was accepted.

    And Russia asked for and got a dramatic increase in the amount of carbon it could claim from its undeveloped
    areas, or carbon sinks, to 33 million metric tons from 17 million metric tons tentatively agreed to at the last
    round of talks in July in Bonn (24 INER 636, 8/1/01).

    Japanese Stance on Compliance

    The Japanese stance is the most complicated, but essentially the Japanese were successful in maintaining a
    previously agreed upon position that discussions on the consequences of noncompliance with the treaty would
    be put off until after it takes effect.
    That position was tentatively adopted in Bonn, with the caveat that it could be revisited at COP-7.

    Some countries, including those in the European Union, tried to establish a connection between compliance
    and the ratification process, arguing that countries should know what the consequences were before ratifying
    the protocol.

    The main compliance issue that needs to be decided is whether there will be legally binding consequences--
    that is, whether violators could be taken to the World Court or some other judicial body--or whether penalties
    will exist only in a political context.

    Political compliance is weaker, meaning that violators can be publicly identified and required to take certain
    steps within the protocol (such as more severe greenhouse gas reductions in the future), but legal steps
    cannot be taken.

    Russians Point Out Errors

    Russia, meanwhile, pointed to what a spokesman told BNA were "errors in arithmetic" regarding the tonnage of
    credit the country would receive for its massive carbon sinks.
    Late Nov. 9, officials from the European Union--which have been the most avid supporters of the protocol--
    floated a compromise that would raise the Russian credit to 24.85 million metric tons, a level that negotiators
    predicted would eventually be accepted.

    But in the final hours of negotiations, the Russians were granted the higher figure they originally asked for--the
    final point of contention in the negotiations.

    "After discussion on these issues all night, the only thing standing between where we were and an agreement
    [to finalize the Kyoto agreement] was coming to terms with the Russians, and that is finally what happened,"
    one Spanish official told BNA Nov. 10.

    One reason Japan and Russia got what they wanted is because without their support to ratify, the four-year-old
    protocol's entrance into force would be impossible.

    Although the European Union and another group of smaller industrialized countries said before the COP-7 talks
    that they would ratify the agreement, those countries represented only 32.4 percent of the industrial world's
    greenhouse gas emissions in 1990, the treaty's base year.

    That is far short of the 55 percent of emissions from at least 55 countries needed for the treaty to enter into
    force. With Japan and Russia, the world's third- and second-largest polluters, respectively, the figure rose to
    58.2 percent.

    The United States, which is the world's largest producer of greenhouse gases with 36.1 percent of emissions
    in the 1990 base year, has already said it will not ratify the treaty, which President George Bush has called
    "fatally flawed."

    Japan, Russia in Strong Positions

    "Without the United States, the only realistic avenue for ratification included Japan and Russia," Jennifer
    Morgan, climate change director for the World Wildlife Fund, told BNA on Nov. 9. "Japan and Russia [had]
    unusually strong positions, because without them the treaty would almost surely be dead."
    Additionally, Japan and Russia needed each other.

    The near collapse of Russian industry over the last decade and the size of the country's expansive undeveloped
    areas that can be classified as carbon sinks assured that the Russians would have no problems meeting their
    country's Kyoto targets.

    But Moscow's aim has been to maximize the surplus emissions it has so it can sell them to other countries
    using Kyoto's flexibility mechanisms, which allow trading of credits from carbon sinks or real reductions.

    With the United States no longer a candidate to buy those credits, Russia needed Japan in order to have a
    major market where it could sell its credits.

    Likewise, Japan needed Russia's credits to assure that it can reach its Kyoto target of reducing emissions by 6
    percent between 1990 and 2012--a figure that seems especially difficult, given figures from Japanese officials
    indicating that as of mid-year, the country's emissions had actually increased by 17 percent from 1990 levels.

    Reactions

    When the final language of the treaty was announced, environmental advocates gave it a lukewarm response,
    while delegates praised it as a landmark agreement.
    "It's a poor deal, but that doesn't mean it's not worth having," said Bill Hare, an official with the pro-Kyoto
    environmental group Greenpeace. "It is important to remember that this is just a first step."

    But officials involved in the talks were clearly relieved to have the long negotiating process finally closed.

    "We have an agreement," Michael Meacher, the U.K.'s top environment official, said after the talks closed. "This
    is a remarkable day for the environment that comes after four very difficult years of negotiations."

    Oliver Deleuze, the EU delegation head at COP-7, agreed. "We are now quite confident that the protocol is
    saved," he said. "The Kyoto process is now irreversible."

    The next step for the protocol is to actually achieve the ratifications that countries have promised, a process that
    advocates say they would like to see completed in less than a year--by the Johannesburg World Summit on
    Sustainable Development in September 2002.

    Ratification Process Varies Widely

    According to Annie Petsonk, a climate control analyst at the U.S. environmental group Environmental Defense,
    the ratification process varies widely among countries, with some able to pass by decree or by an agreement
    from ministers.
    Several countries, however, require longer legislative approval, including testimony from experts and the
    possibility of hearings.

    Of the countries that have promised to ratify Kyoto, Petsonk said, the ones that could have the most difficulty are
    Japan and Russia, which will require approval of their Diet and Duma, respectively.

    Japan likely faces the biggest hurdle, and Japanese Environment Minister Yoriko Kawaguchi took pains to use
    tentative language in an impromptu briefing with reporters after the final agreement.

    "The Cabinet must still decide on the [virtues] of this agreement when I return to Tokyo, but my personal opinion
    is that we have a very strong package," she said.

    The Japanese government, however, announced Nov. 12 that it will begin "full-scale preparations" for
    implementing the domestic measures needed to meet the GHG reductions outlined in the Kyoto Protocol. (See
    related article in this issue.)  

    The Kyoto Protocol is structured in such a way that countries cannot choose to ratify it with "reservations,"
    meaning that a country could not opt for the treaty while excluding certain regions or specific industries within
    the country.

    But the ratification process is not quite a take-it-or-leave-it proposition either. One legal gray area, according to
    Petsonk, is whether a country can ratify on the basis of specific conditions involving future decisions, such as
    the consequences of compliance on which Japan took its hard-line stance.

    Legal Gray Area

    "There is a possibility that a country could say, 'We will ratify the protocol on the presumption that the remaining
    issues take the following form, and if it doesn't, then we reserve the right to rethink our ratification,' " Petsonk
    said. "It's a legal gray area, but this could be where some of the points of contention will come from in the
    future."
    Where the process in Kyoto leaves the United States and the other members of the so-called Umbrella Group
    that have vowed not to ratify the agreement is still unclear.

    Umbrella Group members Japan, Russia, and New Zealand have said they aim to ratify the protocol, whereas
    Australia and Canada have not clearly signaled their intentions.

    A special meeting likely to be held in Russia in 2003 will decide the rules under which nonparticipants will
    interact with countries working under the protocol's rules. (See related story in this issue.)

    U.S. Had Little Involvement

    During the meetings in Marrakech, the United States mostly stayed on the sidelines.
    The opening statement reiterating the U.S. stance by delegation head Paula Dobriansky was not booed as was
    her statement at the Bonn meetings in July, but it was greeted coolly.

    Earlier this year, the United States said it would have an alternate plan in place in time for the COP-7 summit,
    but those plans were dashed when the events of Sept. 11 forced the U.S. government to reallocate its time and
    resources.

    Environmental advocates and delegates from countries that strongly support the Kyoto Protocol said
    developments in Marrakech could apply pressure on the United States to move toward rejoining the process.

    Several European delegates told BNA that language at the COP-7 meetings was being drawn up in such a way
    as to ease the U.S. reentry into the process, given the country's concerns about the effectiveness and cost of the
    protocol.

    But even treaty advocates warned that a U.S. about face is not likely before 2003 or 2004.

    "The language is something much closer to what the United States has looked for previously, but that does not
    mean we can count on support from the Americans," one Italian official in Marrakech told BNA Nov. 10.

    "Of course, we would like to have the U.S. on board, but the treaty will likely have to be in force and will probably
    have to include more participation from developing countries in the second compliance period [which starts in
    2012] before the U.S. will look at it seriously," the official said. "But we have ... structured things to increase the
    possibility whenever it will happen."

    Recent information from the U.S. Energy Information Administration may indicate that ratification is even less
    likely.

    Greenhouse gas emissions in the United States reportedly rose by 3.1 percent in 2000, putting the U.S.
    emissions level an estimated 20 percent higher than in the 1990 base year--a long way from the 7 percent
    reduction target mandated by the Kyoto Protocol. (See related article in this issue.)   



    By Eric J. Lyman

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