to COP 7: From the Buenos Aires Action Plan to the Marrakech Accords (1998–2001)to the Marrakech Accords (1998–2001)

In the f inal hours of COP 3, the negotiation skills of Chair Estrada had proven crucial for ensuring a deal all parties could undersign (see Chapter 3). Essential for his success in ensuring the adoption of the Kyoto Protocol had been the artful postponement of crucial decisions to a post-Kyoto follow-up process. As a result, the Protocol contained demands on the “Conference of the Parties serving as the meeting of the Parties to this Protocol” to determine “at its f irst session or as soon as practicable thereafter” inter alia the modalities of joint implementation (Art. 6 KP), the clean development mechanism (Art. 12 KP), emissions trading (Art.

18 KP) and compliance (Art. 18 KP), as well as the counting of sinks (i.e.

processes or activities removing greenhouse gases from the atmosphere

such as forest or land management) (Art. 3.3 and 3.4 KP). The Protocol provisions themselves imposed thus, to a large extent, the agenda for the immediate post-Kyoto period: if the parties to the UNFCCC were truly determined to make the new treaty operational, they needed to take cru-cial decisions either directly at COP 4 or in the course of a longer process leading up to the f irst meeting of the parties to the Protocol. This section focuses on the negotiations between COP 4 and 7, which accomplished the operationalization of the Protocol.

The Context: Major Developments in Global Politics and Climate Science

Signif icant events outside the UN climate arena concerned above all the US during this period. In January 2001, George W. Bush became the 43^rd President and his administration immediately began to alter the con-text for global politics through a decidedly hostile stance towards multi-lateralism. Later that year, the terrorist attacks of 11 September – striking the US, but inciting an almost global response – sparked speculations about a potential US re-engagement in multilateralism, but in fact led to further unilateral activity (Dessai et al. 2003: 192–193).

Major scientif ic advances were incorporated in the IPCC’s Third Assessment Report (TAR) published in 2001. Although it would not at-tain the same degree of importance in the regime negotiations as its prede-cessors, the TAR presented again increased evidence for global warming and highlighted the discernible human inf luence on climatic variations, bound to become more signif icant in the future (IPCC 2001a, b).

Key Actors in the Global Climate Regime and their Negotiation Positions

Many parties to the negotiations at COP 3 returned home with the perception of having made gains from the Kyoto Protocol (F lavin 1998).

This was particularly true for several members of the JUSSCANNZ coa-lition, who realized that an extensive use of f lexible mechanisms and GHG sinks would considerably facilitate the task of meeting their com-mitments. A shared interest in exploiting the Kyoto mechanisms also led to the emergence of a new coalition: the Umbrella Group, bringing together the members of JUSSCANNZ and major economies in transi-tion (Japan, the US, Canada, Australia, New Zealand, Russia, Ukraine, Kazakhstan, Norway and Iceland) (Ott 2001a: 280).¹ Common to all

1 In 2000, another small and untypical coalition emerged under the term Environmental Integrity Group. It regrouped Annex I and non-Annex I parties (Switzerland, Mexico, South Korea, Liechtenstein, Monaco) (Romero 2004: 10). The group’s overarch-ing aim and foundoverarch-ing rationale was to protect the environmental integrity of the

these countries was a preference for thoroughly operationalizing the new rules of the regime prior to ratifying the Protocol. Their central objective was to obtain maximum f lexibility in the application of the mechanisms, the compliance system (with the US advocating a more rigid approach on this item) and the use of sinks (ENB 1998; Pallemaerts 2004: 38, 45).

Further, several of the long-standing JUSSCANNZ members, especially the US and Australia, continued to display a special interest in genuine regime development by encouraging major developing countries to take on emissions reduction commitments. In the US, given the political con-stellation in the Senate (see Chapter 3), this had even become a condition sine qua non of the country’s ratif ication of the Kyoto Protocol (Tangen 1999). In the course of the talks, these positions would gradually harden (Grubb/Yamin 2001).

The majority of countries from the other big negotiating bloc, G-77/

China, was equally in favour of an operationalization of the Protocol be-fore its (swift) ratif ication, but refused to consider emissions reductions obligations of its own, arguing that the implementation of existing pro-visions, in line with the CBDR principle, had absolute priority (Tangen 1999). The G-77/China preferred less f lexibility, a limited use of sinks, a strong compliance regime and the quick operationalization of the f inan-cial mechanisms (ENB 1998; Torvanger 2001: 2–4).

For the European Union, the immediate post-Kyoto phase produced a hang-over of sorts when it realized that the outcome of the regime re-form process was not as favourable as it had initially sounded, and that much work still lay ahead before it would attain its primary aim, the en-try into force of the Protocol (Interview EU representative 21). After a long period of concentration on the global negotiations, it also had to rec-ognize that it had largely neglected its internal climate policies, compli-cated by diverging preferences among member states (Pallemaerts 2004:

44–45; Jordan/Rayner 2010: 65–66). The f irst important decision aimed at rectifying this was taken in June 1998 when the Council forged a po-litical agreement on the sharing of the EU’s 8% reduction obligation im-posed by the Kyoto Protocol, accompanied by a call to develop a range of climate policy measures within the EU (Pallemaerts 2004: 44–45).² In the period that followed, the Union gradually developed a series of incentivizing and coordinating measures comprising inter alia a

volun-negotiation process by proposing consensus positions acceptable to the different other groups (Romero 2004: 20). As the group would not play a major role in the negotia-tions analysed in this study, it is only explicitly mentioned whenever it or one of its members contributed signif icantly to the regime talks.

2 The political agreement on burden-sharing was, however, not translated into a legal act until a Council decision of June 2002, which, at the same time, constituted the EC’s ratif ication of the Kyoto Protocol (Council 2002).

tary agreement with the European Association of Car-makers on CO₂ emission standards (1998) and a directive aimed at promoting electric-ity from renewable energy sources (EP/Council 2001; Pallemaerts 2004:

46–48; Jordan/Rayner 2010: 64–68). Further, the Commission launched a European Climate Change Programme in 2000 in order to identify and elaborate policies necessary for a sound implementation of the Kyoto Protocol (European Commission 2008a). While growing clarity about its internal climate policies through secondary legal acts was bound to strengthen its actor capacity, the Union’s (primary) legal and institutional set-up remained, despite the entry into force of the Treaty of Amsterdam in May 1999, largely unmodif ied. One signif icant exception has to be signalled, however: to guarantee greater continuity in the EU’s foreign policy approach, a specif ic “Climate Troika” was formed after COP 6 in The Hague, composed of the current Presidency of the Council, the fu-ture Presidency, and – as institutional memory of sorts – the Commission (Grubb 2001: 10).³ The Union’s negotiation position had, f inally, not con-siderably evolved after the Kyoto COP. On the issue of responsibilities, the EU still wanted to loosely incite major developing countries to begin considering emissions reduction obligations in the medium term (Tangen 1999: 176). Regarding the issues that needed to be resolved before the Protocol could be ratif ied, the EU favoured a sound operationalization of the f lexible mechanisms (including a demand for “supplementarity”, i.e.

the def inition of a cap on non-domestic measures counting towards the fulf ilment of a party’s Kyoto target), a strong compliance system, and a limited use of sinks (Torvanger 2001: 2–3).

The Negotiation Process and the EU’s Inf luence Attempts

Held between 2 and 13 November 1998 in Buenos Aires, COP 4 was to provide a f irst opportunity to prepare decisions that were needed to ac-celerate the ratif ication of the Kyoto Protocol. Besides the aim of elabo-rating a work plan to that end, one other issue – directly related to a core pillar of the climate regime – was heavily debated during the f irst days of talks (EPL 1999: 3). During the opening plenary, the Argentinean hosts proposed to include voluntary commitments by developing countries as an additional item on the agenda,⁴ coupled with the promise by President Menem that Argentina would itself soon adopt a voluntary quantif ied

3 It replaced a Troika consisting of the former, current and future Council Presidencies.

This change was also due to diff iculties in the EU’s outreach strategy during the nego-tiations at COP 6, as this chapter explains.

4 To recall, during the Kyoto talks, it had been AOSIS and the AGBM chair Estrada, himself from Argentina, who had already championed a provision to allow for volun-tary commitments of developing countries (see Chapter 3).

emission reductions target (Ott 1998: 186; ENB 1998: 10). The sugges-tion was met with f ierce resistance from the majority of the G-77/China bloc, notably India and China (ENB 1998: 3). For that reason, the issue did not formally make it on the agenda, but was nonetheless informally debated. A heated dispute developed between the US, whose Senate still regarded voluntary commitments of major developing countries as an es-sential precondition for its ratif ication of the Protocol, and China, the ma-jor emitter among the developing countries (F lavin 1998; Tangen 1999).

In these debates, as in the COP on the whole and during previous negotia-tion sessions, the EU found itself somewhere in between the conf licting parties. It appeared to observers as impaired by internal problems and

“rather passive”, despite taking the stance that “broadening commitments in the long term is necessary and unavoidable” (Tangen 1999: 176; ENB 1998: 3, 14). In spite of Argentina’s proposal, followed a day later by the – highly symbolic – signing of the Protocol by US President Clinton (ENB 1998: 13), the G-77/China managed to ultimately f ight off any decisions on voluntary developing country actions. Slowed down by conf licts about this issue, the COP either did not engage in substantive discussions on agenda items directly concerned with the operationalization of Protocol rules or, if it did, was unable to reach decisions (ENB 1998: 14). During the f inal days, the main aim of the negotiators was thus to ensure at mini-mum a decision on the further proceedings of talks. The resultant Buenos Aires Plan of Action (BAPA) did not settle any pending issues, but rather set COP 6 in 2000 as a deadline to forge agreements on, above all, (i) f in-ancial mechanisms to assist developing countries in their efforts against climate change, (ii) development and transfer of technologies; (iii) rules governing the Kyoto mechanisms, including on the issue of supplementa-rity, with priority given to CDM; (iv) rules and procedures on compliance;

and (v) preparations for MOP 1 (UNFCCC 1999a; Bollen/van Humbeeck 2002: 100; ENB 1998).

COP 5 (25 October–5 November 1999, Bonn) began with a high-level plenary meeting during which the host country’s Chancellor Schröder ex-pressed his hope for celebrating the entry into force of the Kyoto Protocol at the 10^th anniversary of the Rio Earth Summit in Johannesburg in 2002 (ENB 1999: 2). This deadline was supported by the EU and numerous others, including Japan and AOSIS (ENB 1999: 12; von Seth 1999: 227).

Central agenda items of the talks were the Kyoto mechanisms and the elaboration of a detailed work plan towards COP 6, even though other items stipulated in the BAPA were also taken up (compliance, technol-ogy transfer, sinks) (Bollen/van Humbeeck 2002: 100; von Seth 1999).

Regarding mechanisms, debates concentrated on a synthesis of propos-als by parties on principles, modalities, rules and guidelines (UNFCCC 1999b, c). During these deliberations, the EU emphasized the need to

link the mechanisms to strong monitoring and reporting requirements, while other industrialized countries spoke in favour of maximum f lex-ibility (ENB 1999: 8–9). Preliminary decisions on the mechanisms were taken and forwarded to preparatory meetings before COP 6 (ENB 1999:

9). A work plan foresaw several intersessional rounds of talks and an ac-celeration of their pace (von Seth 1999: 228; ENB 1999: 8; UNFCCC 1999d). All in all, the conference made thus modest advances on technical issues, keeping the negotiations on track towards the crucial sixth confer-ence (ENB 1999; von Seth 1999: 231). Major events of relevance for the development of the regime were Argentina’s specif ication of its voluntary emission reductions pledges made at COP 4 (2–10% below business as usual during 2008–2012) as well as Kazakhstan’s demand to be included in Annex I (von Seth 1999: 228; ENB 1999: 13). This was welcomed by the US, Japan and Australia, while the EU stated its by then well-known position that a “possible way of making all countries limit their GHG emissions is to agree on increasing global participation after the f irst commitment period” (ENB 1999: 13, emphasis added). This was refuted by China and India, pointing to the “main responsibility” of developed countries (ENB 1999: 13). In the face of this opposition, the announce-ments by Argentina and Kazakhstan could not prevent the emergence of debates on the possibility of non-ratif ication of the Protocol by the US (von Seth 1999: 233).

COP 6 (13–25 November 2000, The Hague) was to bring the show-down in the two-year operationalization process of the Kyoto Protocol kicked off in Buenos Aires. It had been prepared in several meetings during the year 2000, of which observers remarked “the distinct lack of urgency, (…) not only in the conference halls (…), but also in the upper echelons of politics” (Ott 2001a: 280). Preparatory talks had covered all issues of the BAPA, but yielded little results. The COP split into several con-tact groups to consider the issues enumerated in the BAPA (ENB 2000).

At the end of its f irst week, little had been achieved. In the face of the large number and complexity of undecided issues, parties seemed to wait for a compromise text from the Dutch President, Environment Minister Pronk (Ott 2001a: 281; Grubb/Yamin 2001: 268; Dessai 2001: 141). The f inally introduced “Pronk paper” identif ied a total of 39 (!) “crunch is-sues” requiring decisions at the highest political level. The themes were regrouped into four boxes (Box A: developing country issues such as f inancing and technology transfer; Box B: Kyoto mechanisms; Box C:

sinks – discussed under the term “land-use, land-use change and forestry”

(LULUCF); Box D: policies and measures as well as compliance issues) (UNFCCC 2000: 2–14). In spite of all preparatory work, the paper had remained political rather than technical in nature, introducing new ideas and clearly attempting to accommodate the preferences of the Umbrella

Group (Ott 2001a: 281; Dessai 2001: 142; Grubb/Yamin 2001: 268–270).

This latter tendency was particularly noticeable with regard to the Kyoto mechanisms and the use of sinks, two central concerns on which the US-led coalition clashed with the EU’s preferences (UNFCCC 2000: 6–11;

Ott 2001a: 281). Together with the COP President’s unusual approach for tackling the f inal talks with such a political (rather than a legally word-ed) text, it transformed the talks into an open conf lict between the major industrialized coalitions, during which the G-77/China was effectively sidelined (ENB 2000: 18–19; Ott 2001a: 283; Grubb/Yamin 2001: 269;

Dessai 2001: 142). In the US-EU exchanges that followed, the two most contentious issues were the supplementarity of the f lexible mechanisms and the modalities of the use of sinks (Grubb/Yamin 2001: 271–272). On the f irst issue, which turned around the question to what extent activities to reduce emissions carried out through f lexible mechanisms should be restricted, the Pronk paper suggested, rather vaguely: “Annex I Parties shall meet their emission commitments primarily through domestic action since 1990” (UNFCCC 2000: 7, emphasis added). This left much leeway to the Umbrella Group, seeking f lexibility, to the detriment of the EU’s desire to set a clear quantitative ceiling on the use of the mechanisms (Ott 2001a: 283; Grubb/Yamin 2001: 272). The second issue would, however, reveal to be even more problematic: the US and other members of the Umbrella Group (Canada, Australia), had made it clear that they not only desired a maximum use of forest sinks, foreseen in Article 3.3 KP, but also sought to receive credits for carbon absorption through other man-aged lands under Art. 3.4 KP (Grubb/Yamin 2001: 271). This was heav-ily opposed by the EU, the developing countries and the environmental NGOs, who considered far-reaching use of existing management meas-ures towards meeting emission reduction targets as unacceptable (Bollen/

van Humbeeck 2002: 103). The Pronk paper did not, however, take the arguments of the opponents to the US approach into account when stating that “a Party may include the following activities: grazing land manage-ment, cropland management and forest management” (UNFCCC 2000:

10). While some members of the G-77/China were seemingly prepared to grant the US derogations on this point, the EU was more reluctant to compromise, fearing that “ordinary business-as-usual activities in the ag-ricultural sector” would count as “climate protection measures” (Grubb/

Yamin 2001: 271; Ott 2001a: 282). Bilateral talks during the very f inal hours of the COP, involving the UK’s Deputy Prime Minister Prescott⁵ and the US lead negotiator did, against all expectations, produce a com-promise formula. As part of a broader package, it foresaw the opportunity

5 Prescott had already played an important role during the f inal days of negotiations at the Kyoto COP when he represented the EU as part of the Troika (see Chapter 3).

for the US to claim but a limited amount of reductions from its own sinks (75 million tons of CO₂); in return, the EU gave up on its insistence on a quantitative cap on mechanisms (Dessai 2001: 142). The Troika, led by France, brought this compromise to the EU-15 coordination meeting, where it encountered strong opposition by the Scandinavian countries as well as Germany, arguing that the UK never had a mandate to make such concessions (Jacoby/Reiner 2001: 302; Yamin/Grubb 2001: 263; ENB 2000: 18). This forceful opposition within the Union had repercussions for its overall position and effectively led to a breakdown of negotiations at COP 6 (Dessai 2001: 142). The conference ended therefore in a face-saving formula to suspend talks and reconvene later on the basis of what had been achieved so far (ENB 2000: 18–19; Jacoby/Reiner 2001: 302).

All stories told about these negotiations emphasize, besides the unfor-tunate Pronk paper and the tough stance of the US, the less than opti-mal role of the EU (Ott 2001a; Grubb/Yamin 2001; Dessai 2001; Jacoby/

Reiner 2001; Dessai et al. 2003; Vogler 2005). The Union’s performance will be subject to more detailed analysis, set into a broader context, when it comes to assessing its overall inf luence below.

The period after the failure of COP 6 saw several attempts by the Umbrella Group and the EU to prepare a deal on the basis of the partial agreements reached in The Hague. Following an initiative by US President Clinton, whose f inal term in off ice was drawing to a close, a meeting was convened in Ottawa in December 2000. Yet, negotiators could not reach common understandings on key issues, even re-opening some of the agree-ments of COP 6 (Bollen/van Humbeeck 2002: 104). The originally planned follow-up meeting at ministerial level was therefore cancelled (Ott 2001a:

284; Jacoby/Reiner 2001: 303). Cooperation was further complicated after George W. Bush had been sworn in as US President. In March 2001, he in-dicated in a letter to a group of Senators that his administration opposed the Kyoto Protocol because “it exempts 80% of the world, including major pop-ulation centers such as China and India, from compliance” (White House 2001a). On the basis of this and related arguments, including concerns about competitiveness and loss of jobs, the US thus effectively withdrew from the Protocol ratif ication process (Bollen/van Humbeeck 2002: 104). The EU and other governmental actors (such as Japan and the G-77/China), but also a whole range of civil society organisations, attempted to inf luence the US administration to reconsider its stance through sending envoys and letters to Washington, organising protests and issuing open appeals – all in vain (Bollen/van Humbeeck 2002: 104; Dessai et al. 2003: 188).

When it became obvious that the US position would remain unchanged, the EU, led by the Swedish Council Presidency, made clear that Kyoto was

When it became obvious that the US position would remain unchanged, the EU, led by the Swedish Council Presidency, made clear that Kyoto was