CHAPTER IV: THE GREENHOUSE GASES EMISSIONS MITIGATION
4.2. Background of the Kyoto Protocol
The first Conference of the parties to the UNFCCC (COP1) was held from the 28th of March to the 7th of April 1995 in Berlin, Germany, under the chairmanship of Mrs A.
Merkel.524 COP 1 produced the Berlin Mandate,525 which in turn gave birth to the Kyoto Protocol.526 However, most of the framework conventions are procedural in nature, because they only establish the legal and institutional framework that allow further adoption of protocols or other more substantive and concrete treaties for the fulfilment of their objectives.527 The UNFCCC was no exception to that rule, because it did provide for general commitments to countries with respect to emissions mitigation, but failed to give further details with that regard as it is under the Kyoto Protocol.528 Korhola529 thinks that it was so because countries that negotiated the UNFCCC usually pushed aside most of the difficult questions, and considered solely the issues which were possible to agree upon at that time. This explains why an issue such as the allocation of binding emission mitigation targets to country parties was not dealt with under the UNFCCC, but rather waited for future COP forums and outcomes for it to be addressed.
However, as soon as country parties started implementing the UNFCCC, and discussing about the international climate change regime within the frame of the UNFCCC, they
524 Angela Dorothea Merkel is a German stateswoman and former research scientist. She has been the Chancellor of Germany since 2005, and the leader of the Christian Democratic Union since 2000. At the time of the COP 1, she was the German Minister of Environmental Affairs. Information available at:
http://www.biography.com/people/angela-merkel-9406424. (Accessed: 23 October 2016).
525 ‘At the COP 1 held in Berlin, in 1995, parties agreed that the commitments in the UNFCCC were
"inadequate" for meeting the Convention's objective. In a decision known as the “Berlin Mandate”, countries agreed to establish a process to negotiate strengthened commitments for developed countries.’ Information available at: http://unfccc.int/documentation/decisions/items/2964.php.
(Accessed: 23 October 2016). The Berlin Mandate is available at:
https://unfccc.int/resource/docs/cop1/07a01.pdf. (Accessed: 15 June 2016).
526 J. Brunnée (b) “Europe, the United States, and the global climate regime: all together now?” (2008) 24 (1) Journal of LU & Env. Law 1 at 2.
527 D. Bodansky & L. Rajamani (e) ‘The evolution and governance architecture of the climate change regime. International Relations and Global Climate Change: New Perspectives’ (2016) 2nd Ed.
Forthcoming at 11; Korhola (note 21 above; 47).
528 See Article 4 of the UNFCCC.
529 Korhola (note 21 above; 197).
quickly noticed that its commitments were inadequate to meet its ultimate objective of stabilising the concentration of greenhouse gas in the atmosphere at levels that would be harmless to the climate system.530 Parties therefore decided to take on more concrete mitigation actions in order to supplement the Convention’s vague commitments with more specific and quantified obligations, besides coherent time frames for actions.531 Under the "Berlin Mandate" as mentioned above, countries launched the process of strengthening the UNFCCC's commitments through the adoption of a “protocol”, or
“another legal instrument”, whose aim was going to be the allocation of quantified emissions limitation to developed countries, the adoption of objectives to reduce emissions during the period post-2000, and the elaboration of policies and measures relating to emission reductions.532
Breidenich533 lists three reasons that he thinks were behind the decision of the country parties to the UNFCCC to opt for concrete climate change actions: First, the national projections of GHG emissions indicated that most developed countries were not on the track to meet the Convention's emissions mitigation target which was aimed for the year 2000.534 Secondly, the UNFCCC said nothing regarding emissions mitigation for the period post 2000, putting an operational obligation to parties to deal with that gap.535 Finally, country parties recognised that even if developed countries’ GHG emissions were fully stabilised at 1990 levels, it would still not be sufficient to avoid dangerous interference with the climate system. This is because the first commitment period of Kyoto covered only a quarter of global emissions (25 percent), whereas the second commitment is only covering 15 percent of global emissions.536
As for the binding mitigation of emission from developing countries, the Berlin Mandate stated that no new commitments would be allocated to developing countries as part of
530 See section 3.1.2.1 above for details on the objective of the UNFCCC.
531 Breidenich et al ‘The Kyoto protocol to the United Nations framework convention on climate change’
(1998) 92 (2) The Am J’nal of Int. Law 315 at 318; Brunnée (b) (note 526 above; at 2); Korhola (note 21 above; at 47).
532 See note 525 above on the Berlin Mandate. See UNFCCC COP1 Decision 1/CP.1, at 4-6 (June 6, 1995).
533 Breidenich (note 531 above; 318).
534 See Article 4.2 of the UNFCCC for details about developed countries ‘commitments up to the year 2000.
535 Ibid.
536 Bodansky (f) (note 574 above; 18); Korhola (note 21 above; 21).
its process, besides the commitments they already had under Article 4.1 of the UNFCCC.537 This provision of the Berlin Mandate was one of the determining elements for the shaping of the future emission mitigation regime for developing countries, as supported in this study.538 The thing is, at the times towards the adoption of the Berlin Mandate, the position of the majority of developing countries was that it behoved the developed countries to adopt significant measures to reduce the GHG emissions owing to their historical responsibility for climate change. Developing countries often required developed countries to assume their climate change historical responsibility first, before they could also put their own economic development process at risk by adopting GHG mitigation measures in turn.539 However, even though the Berlin Mandate opposed the introduction of new additional commitments for developing countries besides those under the UNFCCC, it further launched (in the same provision) a call for all the parties to "advance the implementation" of their existing commitments under Article 4(1) of the UNFCCC,540 proving that the Berlin Mandate was also concerned with the issue of developing country’s emissions mitigation.
After the Berlin COP 1, the next COP forum (COP2) took place in Geneva, Switzerland.
It run from the 8th to the 19th of July 1996. It was attended by representatives of almost 161 countries, of which 147 of the 158 had already ratified the Convention at that time.541 The Geneva Conference was considered an intermediary forum in the process of preparing a legally binding document to tackle climate change. The looming document was going to use an approach that was different from its mother treaty, the UNFCCC.542 The Geneva Conference confirmed the Berlin COP 1 decisions, and further considered the requirement of the COP 2 ministerial declaration to have legally binding quantitative emission reduction targets for industrial countries,543 although a significant
537 ‘The process will, inter alia: Not introduce any new commitments for parties not included in Annex I, but reaffirm existing commitments in Article 4.1 and continue to advance the implementation of these commitments in order to achieve sustainable development, taking into account Article 4.3, 4.5 and 4.7.’
See Decision II (b) of the Berlin Mandate. Available at: https://unfccc.int/resource/docs/cop1/07a01.pdf.
(Accessed: 15 June 2016).
538 Refer to note 525 above.
539 Cheng Zheng-Kang ‘Equity, Special Considerations, and the Third World’ (1990) 1 COLO. J. INT'L ENVTL. POL 57 at 61-63.
540 See Article 4.1 of the UNFCCC.
541 Korhola (note 21 above; 48).
542 Ibid Corona at 47.
543 The COP 2 Ministerial declaration at 73, decision 8. Available at:
number of countries did not express their views thereby.544 The Geneva Conference became an echo to the IPCC’s call for immediate actions to be taken in order to prevent dangerous anthropogenic related climatic transformations.545
It was during the above Geneva Conference that some developed countries started raising their voices although supporting different trends regarding the issue of emission mitigation by country parties to the UNFCCC. The EU for instance, acted as a unanimous block of countries in promotion of the UNFCCC, demanding the adoption of the strictest measures possible to curb climate change.546 The USA (represented by the Clinton’s administration) shifted its legendary position and surprisingly went claiming a legally binding Convention, insisting that it was not possible to apply the same action packages to all countries, because of their varying circumstances.547 Japan echoed the view of the USA in that regard.548
The shift of the position of the US was surprising because, as demonstrated by Bodansky,549 the absence of binding emission mitigation targets under the UNFCCC was a pure reflection of the US position, as the country opposed any proposition in that direction. Furthermore, the country was opposed to parties such as the EU, and the AOSIS negotiation group that from the initiation of climate change talks, were in favour of a Convention containing legally-binding emission targets.550 That is why, during COP 1 in Berlin, the EU avoided the repetition of the experience pre-UNFCCC by quickly taking the lead in the climate change policing talks, before stating that to return to the 1990 emissions levels as demanded by the UNFCCC could not be done without binding obligations being allocated to parties.551
http://unfccc.int/resource/docs/cop2/15a01.pdf#page=71 (Accessed: 7 May 2016); See Korhola (note 21 above; 48).
544 Sixteen countries refrained from expressing themselves in the ministerial decision, amongst which are (in alphabetic order): Australia, New Zealand, and Russia, along with a number of oil-producing countries.
Information available at: http://unfccc.int/resource/docs/cop2/15a01.pdf#page=71. (Accessed: 7 May 2016).
545 Korhola (note 21 above; 48).
546 Ibid.
547 Ibid.
548 Ibid.
549 Bodansky (e) (note 527 above; 11).
550 Ibid.
551 Korhola (note 21 above; 47).