Exceptionalism United?: Unpacking UNFCCC Article 7.2(c)
| Author | Niranjali M. Amerasinghe - Kristen Hite |
| Position | attorney at the Center for International Environmental Law - Attorney at the Center for International Environmental Law and an adjunct professor of international environmental law at the Paul H. Nitze Johns Hopkins School of Advanced International Studies |
| Pages | 17-23 |
17 SUSTAINABLE DEVELOPMENT LAW & POLICY
exceptionaliSm uniteD?: unpacking unfccc
aRticle 7.2(c)
by Niranjali M. Amerasinghe and Kristen Hite*
* Niranjali M. Amerasinghe is an attorney at the Center for International Envi-
ronmental Law. Ms. Amerasin ghe holds an LL.M. in Internationa l and Com-
parative Law from the George Washington University Law School, and an LL.B.
from the University of Bristol. Kristen Hite is an atto rney at the Center for
International Environmen tal Law and an adjunct professor of international
environmental law at the Paul H . Nitze Johns Hopkins Scho ol of Advanced
International St udies. She holds an M.S. in gestión a mbiental/Environmental
Management from the Universidad San Francisco de Quito in Ecuador and a
J.D. from Georgetown University Law Center. The authors would like to thank
Matthew Axtell, Daniel B. Magraw Jr., Gordon M. Scott, and Stephen J. Porter
for their insightful comments and review.
INTRODUCTION
In the wee hours of the United Nations Framework Conven-
tion on Climate Change’s (“UNFC CC” or “C onvention”)
fifteenth Conference of the Parties (“COP-15”), the United
States invoked Ar ticle 7.2(c) of the Convention,1 an ob scure
and little understood provision, in a last-minute effort to reach
agreement on the post-2012 clim ate regime.2 What is Article
7.2(c), an d what are its potential appl ications beyond the spe-
cific context of the negotiations at Copenhagen? Some have
suggested that this particular provision could present a unique
opportunity for specific groups of countries to take coordinated
action to address c limate ch ange whil e remaini ng under the
UNFCCC umbrella. This article offers an initial analysis of the
scope of Article 7.2(c) and its potential appli cation to interna-
tional efforts to address climate change.
Under the UNFCCC, Article 7.2(c) provides that:
The Conference of the Parties, as the sup reme body
of this Conve ntion, shal l keep under regular rev iew
the implementation of the Convention and any related
legal instruments that the Confe rence of the Parties
may adopt, and shal l make, within its mandate, t he
decisions necessary to promote the effe ctive impl e-
mentation of the Convention . To this end, it shall:
. . . (c) facilitate, at the request of two or more Par-
ties, the coordination of measures adopted by them
to address climate change and its effects, taking into
account the differing circumstances, responsibiliti es
and capabilities of the Parties and their respective com-
mitments under the Convention.3
Article 13.4(d) of the Kyoto Protocol (“KP” or “Protocol”)
has nearly identical language to the text contai ned in Conven-
tion Article 7.2(c). Like the Convention text, KP Article 13.4(d)
gives the Conference of the Parties serving as the meeting of the
Parties to the Kyoto Protocol (“CMP”) the authority to:
Facilitate, at th e request of two or mo re Parties, the
coordination o f measures adopted by them to add ress
climate change an d its effects, taking into account the
differing ci rcumstances, responsibilities and capabili-
ties of the Parties a nd their respective commitments
under this Protocol.4
Indeed, the difference between the Convention text and this
provision lies only in the comm itments: the Convention text
applies to the commitments of the Convention, while the Proto-
col text applies to commitments “under this Protocol.”5
For the purposes of this article, we focus our analysis on
the authority given to the Conference of the Parties (“COP”) to
facilitate coordination of measures adopted by a group of Parties
based upon the specific text in Article 7.2(c). We begin with the
Vienna Convention on the Law of Treaties (“Vi enna Conven-
tion”) for guidance on interpreting treaty-level text.6
legal fRamewoRk
Rules for treaty interpre tation are contained in Articles
31 an d 32 of the Vienna Convention.7 These rules are widely
considered to be a codification of customary inter national law
regarding t reaty interpretation.8 Thus, they are applicable with
respect to a given State regardless of whether it has ratified the
Vienna Convention.9
The primary rule of interpretation states, “[a] treaty shall be
interpreted in good faith in accordance with the ordinary mean-
ing to be given to the terms of the treaty in their context and in the
light of its object and purpose.”10 “Context,” in relevant part, can
include other provision s of the treaty,11 “any subsequent agree-
ment between the parties regarding the interpretation of the treaty
or the application of its provisions,”12 “any subsequent practice
in the applica tion of the treaty which establishes the agreement
of the parties regarding its interpretation,”13 “any relevant rules
of international law applicable in the relations between the par-
ties,”14 and any s pecial meaning given to a term.15 T herefore,
with respect to interpreting Article 7.2(c) of the UNFCCC, rel-
evant source s would include: operative and pream bular text of
the UNFCCC, and its annexes; the Kyoto Protocol, which would
constitute a subs equent agreeme nt applying provisions of the
UNFCCC (in cluding, but not limited to, Article 4.2(a) an d (b)
of the UNFCCC, relating to Annex I mitigation); COP decisions
and CMP decisions, which would constitute subsequent pra c-
tice to the extent that they establish agreement of the Parties on
interpretation of UNFCCC provisions;16 and other relevant rules
of international law.17 For the purpose of this preliminary scop-
ing, we will focus on context provided by provisions within the
UNFCCC and the Kyoto Protocol.
Based on thi s Vienna Convention guidance, the r elevant
terms of Article 7.2(c ) should be analyzed in accordance with
18WINTER 2010
their ordinary meaning in context and in light of the object and
purpose of the UNFCCC. The next section of the article contains
this analysis, followed by an examination of procedural require-
ments for invoking the power, as well a s additional consider-
ations and a conclusion.
INTERPRETATION
The purpos e of this preliminary scoping is to provide ini-
tial guidance on what it would mean for the UNFCCC if th e
COP were to facilitate coordination of measures adopted by two
or more Parties. As such, we have limited the examination of
“context” to key provisions within the UNFCCC and the KP
(which constitutes a subsequent agreement).18 For the purposes
of Article 7.2(c), the key operative phrase is, “facilitate coordi-
nation of measures adopted.”19 The remaining portio ns of the
paragraph pr ovide broader con-
text an d procedural c onsider-
ations, which we address in later
sections.20 We now consider the
ordinary meaning of these terms
and thei r context, takin g into
account the object and purpose
of the UNFCCC.21
oRDinaRy meaning
Recognizing the key oper-
ativ e phra se of Conv ention
Article 7.2(c) is “facilitate coor-
dination of measures adopted,”
we now examine the ordinary
meaning of “facilitate,” “coor-
din ation ,” “mea sures ,” and
“ad opt ed. ”22 Th e U NFCCC
does not define any of the above
terms, so without explicit guid-
ance on d efinitions we begin
our analysis with standard dic-
tionary definitions.23 The ordi-
nary me aning of “fac ilitate” is t o “make easy or easier.”24 To
“coordinate” is to “adjust (various parts) so as to have harmoni-
ous action.”25 “Measures” typically refers to some form of leg-
islative enac tment, or a co urse of action to achieve a s pecified
goal.26 And “ado pt” implies some type of formal acceptance
process.27
Based on these plain meaning definitions, the power to
“facilitate coordination of measur es adopted” means: ma king
easier the harmonization of courses of action accepted by a for-
mal process. Of course, this does not shed mu ch light on what
facilitation or coordination might invo lve, nor what kinds of
actions can be considered measures for UNFCCC purposes. For
this we look to context—both specific to the terms and broadly
applicable to the power—provided in the UNFCCC and the KP,
and the object and purpose of the UNFCCC.
Specific contextual conSiDeRationS
In this sect ion we examine specific contextual consider-
ations associated with each of the key terms. Under the Vienna
Convent ion, “context” in relevant par t in cludes, inter alia,
other provisions of the treaty;28 and “any subsequent agreement
between the p arties rega rding the interpretati on of the tre aty
or the application of its pro visions.”29 We now analyze “con-
text” based on the specific key terms of Article 7.2(c) and their
broader context within the UNFCCC and Kyoto Protocol.30
Facilitate
In the context of the scope of activities that may be facili-
tated, the UNFCCC contains seve ral helpful references. Wit h
respect to Party obligations, there are provisions that expressly
connect facilitation with: adequate adaptation measures to be
taken by all Parties;31 and the
tran sfer o f tec hnologie s and
capacity building for developing
countri es by developed co un-
try Parties, inc luding those in
Annex II.32 “Facilita te” could
also indirectly apply to both mit-
igation and new and addition al
financing measures through the
application of Articles 7.2(b) or
7.2(c), which provide for facili-
tation of me asures to address
climate change and it s effects;
however th ere are no express
provisions that li nk “facilitate”
with miti gation or n ew an d
additional financing measures.33
Addit ionally, facili tation can
apply to: “(i) th e develop ment
and implemen tation of educa-
tional and public awareness pro-
grammes on climate change and
its effects ; (ii) public access to infor mation on climate change
and i ts effects; (iii) public participation in addressing climate
change and its effects and developing adequate respon ses; and
(iv) training of scientific, technical and managerial personnel.”34
This type of facilitation may be at national levels, and as appro-
priate, sub regional and regional levels.35
In terms of COP pow ers, there are two explicit p owers to
“facilitate:” Article 7.2(b) on facilitating the exchange of infor-
mation;36 and Article 7.2(c) on facilitating coordination.37 Addi-
tionally t he Secretariat can provide facilitatio n with respect to
the provi sion of assistance in compilation and communication
of infor mation required by the Conve ntion, which is aimed at
assisting developing countries.38 Finally, wi thin the UNFCCC,
“facilitate” is distinct from “promote” and “finance.” There are
several pr ovisions that call for Parties/bodie s to “promote and
facilitate”39 and one provision that requires Parties to “promote,
facilitate an d finance,”40 indicating that the term “facilitate” is
distinct from the other two.
Based on this Vienna
Convention guidance, the
relevant terms of Article
7.2(c) should be analyzed
in accordance with their
ordinary meaning in
context and in light of the
object and purpose of the
UNFCCC.
19 SUSTAINABLE DEVELOPMENT LAW & POLICY
In the context of the scope of activities that m ay be facili-
tated, the Kyoto Protocol offers several text ual references for
consideration . The Kyoto Protocol specifically allows fo r the
facilitati on—including by t he CMP—of adequate adaptati on
measures.41 Further, it allows for indirect facilitation of mitiga-
tion measures to address climate change and its effects.42 Addi-
tionally, like the UNFCCC, “facilitate” can apply to technology
transfer, cap acity building, and the exchange of information.43
Yet a nother similarity with the Convention is that, wit hin the
Protocol, “facilitate” is distinct from “promote” and “finance.”44
Whil e t he Prot ocol an d
Conventio n have largely simi-
lar, and in some cases identical,
provisions regarding facilitation,
the KP provides context, as per
the Vienna Convention frame-
work, as a subsequent ag ree-
ment applying p rovisions of the
UNFCCC. Beyond the expre ss
powers of facilitating excha nge
of information and coordination,
the Kyoto Protocol specifically
manda tes the C MP to faci li-
tate cooper ation with respect to
Annex I (“AI”) Parties’ obliga-
tions.4 5 An additio nal consid-
eration is that the P rotocol has
provisions that explic itly allow
for facilit ation at the national
and int ernational levels, while the Convention also allows for
facilitation at the sub-regional and regional levels.46
In sum, facilit ate seems to mean enhancing somet hing
beyond promotin g or financing , at various levels . To better
understand what that “something” is, we now consider the spe-
cific context for “facilitate coordination.”
Coordination
Article 7.2(c) clearly indicates that coord ination can apply
to measure s that address climate change and its effect s. There
are few other references to c oordination in the UNF CCC;47
however, they do indicate that, in addition to measures, coordi-
nation can apply to specific instruments, such as “relevant eco-
nomic and administrative instruments developed” by AI Parties
“to achieve the objective of the Convention.”48 Additionally,
the UNFCCC provides the Secretariat with powers to undertake
coordination ac tivities with secretariats of other relevant inter-
national bodies.49 With respect to COP powers, as noted above,
there are two types of facilitation po wers granted to the COP:
the power to facilitate exchange of information (Article 7.2(b)),
and the p ower to facilitate coordination (Article 7.2(c)).50 Not-
ing that exchange of information relates to measures by all Par-
ties, and coordination relates to a su bset of Parties,51 the two
separate COP powers point to the inference that “coordi nate”
and “exchange of inform ation” are distinct. However, to the
extent that harmonizing action ma y involve the exchange of
information, “coordinate” could involve or be enhanced by, but
not be limited to, exchanges of information. Indeed , it is pos-
sible that facilitating the exchange of informat ion of measures
adopted by all Parties under Article 7.2(b) is part of what would
allow the COP to coordinat e measur es taken by a su bset of
Parties.
“Coordination,” in the context provided by the KP, has a
similar meaning as in the UNFCCC. It is clear that policies and
measures may be c oordinated.52 “Coordination” can involve
specific activities, including developing th e “ways and means”
for c oordination, enabl ing con-
sideration of reviews undertaken
across th e U NFCCC and KP,
and establishing expert teams.53
“Coordinate” is a distinct term
from “cooperate” or “promote,”
although the terms are not nec-
essarily completely distinct.54
In the conte xt of seeking
“har monious a ction,” a s the
plain language indicates, “coor-
dination” in the con text of the
UNFCCC and KP can incl ude
the develo pment of ways and
mean s t o u nderta ke acti ons
regarding policies and measures,
consideration of reviews acr oss
relevant treati es, and minimiza-
tion of adverse impacts.55 For
the purposes of this analysis, we focus on “fa cilitate coordina-
tion” of “measures.”
Measures
The UNFCCC p rovides som e interesti ng context for the
meaning and use of m easures. At a genera l level , there are
references to “measures” with respec t to: “add ressing climate
change;”56 taking action to “combat climate change;”57 taking
precautio nary acti on “to anticipat e, preve nt or minimize the
causes of climate change;”58 and protecting the “climate system
against human-induced change.”59 M easures taken to com bat
climate change can be unilateral.60 Measures taken to protect the
climate system should be tailored to “the specific conditions of
each Party” and be “integrated with national development pro-
grammes.”61 Additionally, for all measures undertaken pu rsu-
ant to the UNFCCC, the COP is required to assess their overall
effect, particularly “environmental, economic and social effects
as well as their cumulative impacts and the extent to which prog-
ress . . . is being achieved.”62
More s pecifically, measures are refere nced in th e context
of spec ific actions. For example, measures adopted by Parties
to “mitigate climate change” and to facilitate adaptation, “tak-
ing into account” nati onal circumstances, must be i ncluded in
the formulation, implementation, and publication of all Parties’
national or reg ional progra ms.63 In implementing these m ea-
sures, certa in considerations, incl uding “social, economic , and
Measures taken to protect
the climate system should
be tailored to “the
specific conditions of each
Party” and be “integrated
with national development
programmes.”
20WINTER 2010
environmental policies,” must be taken into account in order to
minimize adverse economic, health, a nd environmental effects
of su ch measures.64 Parties mus t also i nclude details of these
measures in their national communications.65 In the spe cific
context of AI mitigation, measures (in tandem with p olicies)
are requ ired on both national and regional levels.66 AI Parties
can j ointly implement these meas ures.67 Detailed information
on these pol icies and measures must be included in national
communications in accordance with relevant articles.68 On miti-
gation g enerally, the CO P can promote and guide comparable
methodolog ies to evaluate the “effectiveness of measures to
limit the emissions and enhance the removals of these gases.”69
Measures can also apply to obligations of developed coun-
try Parties and other Parties in Annex II for the provision of
financial resources and techno logy transfer .70 Although mea-
sures are not explicitly referenced in respect of providing finan-
cial resources for developing country mitigation, adaptation, and
technology transfer to devel oping countri es when setting out
Party obligations, Article 12.3 on inclusion of details in national
communications specifically refer s to such activities as “mea-
sures.”71 Thus, m easures can be inv olved in the provi sion of
financial resources and technology transfer.72
Finally, “poli cies” and “measures” appear to have distinct
meanings i n the UNFCCC. Particularly in the context of miti-
gation, the provisions r efer to “policie s and measures, ” which
imply that there is a distinction between the two. 73 Thus, for the
purposes of Article 7.2(c), the COP could facilitate coordination
of activities that can be considered “measures” but not those that
would constitute “policies.”
We further consider t he context of “measures” by look -
ing beyond the Convention context to the use of the term in the
Kyoto Protocol. Under the Protocol, “measures” refers to adapta-
tion and mitigation, for both AI and non-AI Parties.74 Measures
may be adopted by Par ties, tailored to national circumstances,
included in national communications, as well as included in
the formulation, implementation, and publication of all Parties’
mitigation and adaptat ion measures.75 Additionally, measures
should minimize adverse effects, including social environmental
and economic impacts, and can enable the COP to take further
action, where appropriate.76
In the specific context of AI mitigation, the scope of “mea-
sures” appears broad and in tandem with “policie s,” includes,
inter alia: enhancements of energy ef ficiency s ectors, s inks,
transport, and some ozone depleting substances; protect ion of
sinks; promotion of sustainable forest management and agricul-
tural practices, as well as of technologies; research for technolo-
gies; a nd public se ctor economic interventions, such as taxes,
incentives, duties, and subsidies.77 Specificall y for AI Parties,
the COP may consider the “ways and means” of mitigation mea-
sures based on a CMP decision that coordination is beneficial.78
For all Parties, including non-AI Parties, measu res can be
included in national and regional programs that apply to certain
sectors, such as energy, transport, industry, agriculture, forestry
and waste man agement, as well as adapt ation technologies and
spatial planning.79 Even those “measures” undertaken by specific
Parties can nevertheless involve cooperation to “en hance indi-
vidual and combined effectiveness.”80
In sum, “facilitate c oordination of measures,” in this par-
ticular context, seems to refer to enabling a nd enhancing har-
monious action to address mitigation and a daptation act ions,
potentiall y includin g ways and means suc h as financing and
transfer of technology. As such, “measures” would seem to be
most associated with the plain-meaning definition of a “course
of action to achieve a specified goal. At the same time, the alter-
native plain meaning of “measures” as a legislative enactment
may also be relevant given the need for “adoption” of measures.
We now consider what “adopted” could mean.
Adopt
What does it mea n to have “adopted” measures? In the
UNFCCC, “ado ption” can apply generally to the Parties81 and
to th e COP.82 For example, all Parties can adopt measures to
address cli mate change and its effects.83 However, in the con-
text of AI mitigation, UNFCCC Article 4.2(a) mandates that AI
Parties “adopt n ational polici es and take corres ponding mea-
sures,”84 also known as mitigation commitments, which includes
policies and measures adopted by regional economic integration
organizations.85 The UNFCCC also specifies when amendments
to these specific mitigation commitments are permitted.86
Further, the COP can adopt treaty-level text prior to further
acceptance or ratification, such as: legal instruments related to
the UNFCCC87 to the extent that such instruments constit ute a
treaty; protocols, with specified procedures on adoption by vot-
ing if all effort s to reach consensus fa il;88 amendments to the
UNFCCC, with procedures for voting if consensus fails; 89 and
annexes, including amendments to those annexes, with p roce-
dures for voti ng if consensus fails.90 Othe r items include: legal
instruments that do not constitute treaty-level text;91 decisions
on matters within its mandate;92 rules of procedure and financial
procedures for itself and for any subsidiary bodies;93 guidelines
for national communications;94 regular reports on the implemen-
tation of the Convention;95 and rules of procedure for concilia-
tion and arbitration in the context of dispute settlement.96
We look to the Kyoto Protocol for additional context. First,
similar t o the UNFCCC, “adopted” can apply generally to the
CMP as well as specifically to Parties, including at the national
and int ernational levels.97 At the international level, the CMP
may adopt futur e treaty text that has not yet entered into force,
as well as amendments and annexes.98 Note that treaty text can
specify when adoption can impact future commitments.99 Cer-
tain provisions must be adopted by undertaking amendment pro-
cedures such as a vote, but prior to ratification.100
Other it ems beyond trea ty-level text may also be adopted
in the context of the Protocol. The C MP may adopt decisions,
including adoption “under” or “pursuant to” treaty provisions.101
Other item s t he K P e xplicitly refere nces in the context of
“adopted” include commitment periods, guidelines for the prep-
aration of information, and national communications.102 Finally,
as already noted in this article, Partie s may adopt measures to
address climate change and its effects.103
21 SUSTAINABLE DEVELOPMENT LAW & POLICY
In sum, adoption is consistent wit h the plain meaning of a
formal acceptance process. In this context, recognizing that the
ordinary meaning of “measures” is either a course of action or
legislative enactment, “adopt” functionally modifies “measures”
to those on which f ormal a ction has bee n taken by Parties,
whether specifically legislative in nature or otherwise.
bRoaDeR contextual conSiDeRationS
In this section, we briefl y examin e contex tual cons ider-
ations relevant to the power as a whole.
In international law, “Parties” typically means those States
for whom the treaty in question is in fo rce.104 B ecause the
UNFCCC does not define Parties, we assume for the purpose
of this analysis that “Parties,” in t he context of the UNFCCC,
means countries that have ratified the UNFCCC.105 Thus, only
countries that have consented to be bound (i.e. through formal
ratificati on proce dures) b y the UNFCCC can invoke Article
7.2(c), and only measures adopted by those countries are eligible
for coordination by the COP.106
In the case of the Kyoto Protocol, “Party” means, unless the
context otherwise indicates, a Party to this Protocol.”107 While
the KP’s g overning b ody (the CMP) is leg ally disti nct from
the UNFCCC’s COP, the Protocol does include provisions that
apply to the UNFCCC’s AI Parties.108 For KP Article 13.4(d),
only “Parties,” as opposed to “Party in cluded in Annex I,” is
mentioned. Thu s, unless the co ntext indicates otherwise, “Par-
ties” here means Parties to the Kyoto Protocol.
The second half of Article 7.2(c) shapes the power to facili-
tate coordination of measures by requiring the COP to take “into
account the differing circumstan ces, responsibilities and capa-
bilities of the Par ties and the ir respective commitments under
the Convention.”109 It therefore follows that th e COP has an
obligation, in facilitating coordination of measures, to consider
how those meas ures relate to differentiated responsibilities and
national circumstances, as well as the specific commitments of
different groupings of Parties within the UNFCCC.
Additional context i s provided by the chapeau o f Article
7.2:
The Conference of the Parties, as the supreme body of
this Convention, shal l keep u nder regular review the
implementation of the Convention and any related legal
instrumen ts tha t the Confere nce of the Parties may
adopt, and shal l make, within i ts mandate, the d eci-
sions neces sary to promote the effective impl ementa-
tion of the Convention.110
This demonstrates that the pr imary role of the COP is to
promote effective implementation of the UNFCCC, thus any
exercise of powers must contribute to achieving this goal. Fur-
ther, the chapeau provides guida nce on the form of action that
the COP can take within its powers ; the C OP shall make the
decisions necessary to implement the UNFCCC.
obJect anD puRpoSe
The pr imary objective of the UNFCCC is to “achieve, in
accordance with the relevant provisions of the Convention, sta-
bilization of greenhouse gas concentrations in the atmosphere at
a level that would prevent dangerous anthropogenic interference
with the climate system.”111 This objective is guided by, inter
alia: common but differentiated respo nsibilities and respective
capabilities ; the specific nee ds and circumstances of the par-
ticularly vulnerable; the need to take precautionary measures;
the promotion of sustainable development; and promotion of
an open international economic system.112 The KP affirms the
overall objective of the UNFCCC.113 These are a ll important
considerations regarding the COP’s power to facilitate coordina-
tion of measures.
PROCEDURAL MATTERS AND ADDITIONAL
CONSIDERATIONS
Although it is beyond the scope of this article to examine
similar provisions in other Multilateral Environmental Agree-
ments (“MEAs”), which cou ld be helpful in determin ing the
application of powers to facilit ate coordi nation of measures,
initial research shows that the explicit power to facilitate coo r-
dination of measures ado pted by a subset of P arties is rare.114
Nevertheless, broadly speaking, there are examples of other con-
ventions granting powers or creating bodies that have the effect
of coo rdinating measures adopted by different subset s of par-
ties.115 Ana lyzing these examp les in the future might be help-
ful in informing what kinds of actions the UNFCCC COP could
authorize under Article 7.2(c).
As noted above, there is a specific procedural requirement
to invoke the COP’s power under Article 7.2(c): “at the request
two or more Parties.” Typically, rules for this kind of procedural
matter are contained in the rules of procedure of a convention’s
governing body, however the UNFCCC COP to date has not for-
mally adopted rules of procedure,116 due to an inability to reach
consensus on draft rule of procedure 42, containing, inter alia,
voting rules for substantive matters.117 Instead, the Parties pro-
visionally apply draft rules of procedure, except for rule 42, at
all COP and CMP meetings until the rules are formally adopted,
which means that most procedural and substantive issues—
unless specified in treaty text or outside of rule 42 —must be
decided by consens us.118 Therefore, at t he moment, the draf t
rules of procedure as provisionally applied can provide guidance
on the proce dural elements of requesting facilitation of coordi-
nation measures.
The primary powe r of the COP is to take “the decision s
necessary to promote the effective impl ementation of the Con-
vention,” as stated in Article 7.2. These decisions are adopted
at COP sessions, which are manda ted to take place once every
year with the possibility of extraordinary sessions if Parties so
request.119 To ensure that an item is consider ed, it should be
included in the age nda for the session. Acco rding to the draft
rules of procedure, an item may be added to the agenda in one
of three ways: before circulation of the provisional agenda; after
circulation of the provisional agenda but before the opening of
the session , which would then be included in a supplementar y
provisional agenda; or at the adoption of the agenda.120 The Sec-
retariat, in agreement with the President of the session, drafts
the provisio nal and supplementary provisional agendas, which
22WINTER 2010
include “as appropriate: [a]ny item proposed by a Party.”121 At
adoption of the agenda, items can be added, deleted, def erred,
or ame nded only i f the COP decides to do so.122 Thus, to get
an item on the agenda before adoption merely requires a pro-
posal by a Party and the agreement of the President and cannot
be d eleted, deferred, or amend ed without consensus, whe reas
items introduced at the meeting must initially have consensus to
be added to the agenda. Additi onally, items can only be added
at the meeting if the COP considers it urgent and important.123
Considering all of the se procedu ral matters , perhaps the
most likely way that the COP would consider a request to facil-
itate the coordination of measures would be through a formal
agenda item proposed prior to circul ation of the provisional
agenda. Pr esumably this could occur via a request from a sin-
gle Party on behalf of two or more Parties , or as a join t pro-
posal from multiple parties for inclusion as a COP agenda item
of facilitat ing coordination of measures adopted by a group of
Parties. Once the item is placed on the agenda, it would then
become incumbent on the COP to consider it and to facilitate the
coordination of measures, potentially through a COP decision
(which, pursuant to the draft rules of procedure, would need to
occur via consensus).
CONCLUSION
Followin g the Vie nna C onvention’s directi on on trea ty
interpre tation by looking at the ordinary meanin g, c ontext,
objective, and pu rpose of a treaty, we b egin to form a better
understanding of the scope of activities that may be undertaken
pursuant to UNFCCC Article 7.2(c).
Recognizing that the key operat ive component of Article
7.2(c) is “facilitate coordination of measures adopted,” we have
considered the meaning of the specific phrase and its broader
context. Both the Convention and the Kyoto Protocol contexts
generally support the plain meaning of the terms, which col-
lectively could be re ad as “making easier the harmon ization
of courses of action accepted by a formal process.” In simpler
terms, we could say that a plain meaning interpretation of Article
7.2(c) supports the COP’s enabling the harmonization of formal
national-level actions, whether legislative or otherwise.
What does this process of enabling harmonization of formal
domestic actions mean in the specific context of the Framework
Convention? To a nswer this q uestion we look to the specific
context of these te rms as well as the broader context of the
UNFCCC and its successor treaty, the Kyoto Protocol.
Based on an analysis of the context of the specific terms, it
seems most helpful to consider Article 7.2(c), first based on the
action taken by the COP: “facilitate” in the context of “coordi-
nation,” and then consider the activity unde rtaken by specific
Parties: “measures adopted by them.” As such, we can piece
together the ordinary meaning and context of the two operative
clauses of Article 7.2(c): “facilitate the coordination” and “mea-
sures adopted by them.”
First, with respect to “facilitate the coordination,” we have
seen that “fa cilitate” means enha ncing or enabling “som e-
thing” beyo nd promoting or financing, at vario us levels. That
“something” is better explained in the specific context of “coor-
dinate” or “coordination” under the UNFCCC and KP, which
includes the deve lopment of ways and means to undertake
actions regarding, inter alia, “measures.” Putting t hese terms
together, in light of their or dinary meaning, we can t hus con-
clude th at “facilitate the coordination” could be i nterpreted to
mean enhancing or enabling the achievement of a goal, includ-
ing through ways and means.
What is the specific goa l we are see king to achieve in the
context of A rticle 7.2 (c)? To ans wer this question we m ust
define “measures adopted by them.” The ordinary m eaning of
“measures” is “course of acti on” or “legislativ e enactmen t,”
which is informed by the UNFCCC and KP subset of actions and
enactments to addre ss mitigation and adaptation. In looking at
the relevant treaties, we see that some specific measures connote
specific mitigation a ctions by AI Parties, and, i n some cases,
other Parties associating under Convention Article 4.2(g), while
other “measures” are relevant to all Parties, including AI and
non-AI Parties. We also see that measures can broadly involve
adaptation and mitigation, including enhancements, protections,
and promotion of specific activities, research, and public sector
interventions. We also see that these measures can apply at both
national and regional levels.
Given the relatively broad s cope of potential “measu res”
under the UNFCCC and KP, we focus o n the mean ing of the
“adopted” modifier. In the context of Convention Article 7.2(c),
“adopted” measures seem to be consistent with their plain mean-
ing involving a formal acceptance process. As such, “measures
adopted by them” means those measures to which formal action
has been taken by Parties.
Putting these terms togeth er, “f acilitate coordination of
measures,” in this partic ular contex t, would seem to refer to
enabling and enhancing harmonious action to address mitigation
and adaptation actions formally adopted by specific Parties, and
potentially include ways and means such as financing and trans-
fer of technology. Ta king this phrase in light of the complete
text of Article 7.2(c), we see that the COP has a mandate to take
action, such as issuing decisions, to ensure effective implemen-
tation of the Convention’s objective of a voiding anthropogenic
interference w ith the climate sy stem in a manner that supports
sustainable development and t akes into account common but
differentiated responsibilities.
Noting that the Kyoto Protocol has nearly id entical lan -
guage for facilitating the coordination of measures and affirms
the same objective as the Convention, either or both the COP
and CMP woul d have an affirmative ob ligation to act if two or
more of their respective Parties issue a request pursuant to Con-
vention Article 7.2(c) and/or Protocol Article 13.4(d). As such,
it is certainly possible that a subset of Parties could request the
COP and CMP to facilitate the coordination of formally adopted
domestic measures, and in doing so obligate the COP or CMP to
act on such a request. While in theory this could enable a subset
of c ountries to act, due to the provisional rules of procedure,
in pr actice the COP may find it di fficult to fulfill its mandate
given tha t any decision taken would need to be by consensus.
23 SUSTAINABLE DEVELOPMENT LAW & POLICY
Nevertheless, real possibilities exist for enhanced coordination
at the internation al level—potent ially even between the COP
and CMP as governing bodies—to work towards achieving the
ultimate objective of the Co nvention and avoiding dan gerous
human interference with the Earth’s climate.
1 United Nations Framework Convention on Climate Change, May 5, 1992,
1771 U.N.T.S. 107, U.N. Doc. A/AC.237/18, available at http://unfccc.int/
resource/docs/convkp/conveng.pdf [hereinafter UNFCCC].
2 This last-minute effort revolved around securing adoption of the “Copenha-
gen Accord,” a document negotiated by roughly 30 heads of State that was for-
warded to the COP. Because it was by a subset of parties, and represented that
subset of Parties’ interests, there was significant objection to the Accord as well
as the COP’s ability to formalize it. As a result, the Accord was not adopted as
a decision, and was taken note of instead. See UNFCCC Website, Decisions
taken at COP-15, available at http://unfccc.int/files/meetings/cop_15/applica-
tion/pdf/cop15_cph_auv.pdf. The decisions from COP-15 are still in advanced
unedited format.
3 UNFCCC, supra note 1, at art. 7.2(c) (emphasis added).
4 Kyoto Protocol to the United Nations Framework Convention on Climate
Change, art. 13.4(d), Dec. 10, 1997, 37 I.L.M. 22 [hereinafter KP], available at
http://unfccc.int/resource/docs/convkp/kpeng.pdf.
5 Id.
6 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S.
331 available at http://untreaty.un.org/ilc/texts/instruments/english/conven-
tions/1_1_1969.pdf [hereinafter Vienna Convention].
7 Id. arts. 31, 32.
8 Legal Consequences of the Construction of a Wall in the Occupied Palestin-
ian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9), ¶ 94, at 174; Case
Concerning Legality of Use of Force (Serb. & Mont. v. U.K.), Preliminary
Objections, Judgment, 2004 I.C.J. 1307 (Dec. 15), ¶¶ 98, 99, at 1345; Case
Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment,
2004 I. C. J. 12 (Mar. 31), ¶ 83, at 48.
9 See, e.g., Avena and Other Mexican Nationals, supra note 8 (providing an
example of a case in which the Vienna Convention was applied, when the U.S.
has accepted, but not ratified the treaty).
10 Vienna Convention, supra note 6, art. 31.1.
11 Id. art. 31.2.
12 Id. art. 31.3(a).
13 Id. art. 31.3(b).
14 Id. art. 31.3(c).
15 Id. art. 31.4. In this context, we consider any special meaning assigned to a
term to be specific definitions provided in the UNFCCC, if any.
16 JoSe alvaReZ, inteRnational oRganiZationS aS law-makeRS 82-92 (2005)
(noting that institutional practice as context-setting is not undisputed, but that it
is nevertheless commonly relied upon by treaty interpreters as context, insofar
as the institution is acting within the purposes of the treaty).
17 Vienna Convention, supra note 6, art. 31.3(c).
18 UNFCCC, supra note 1, art. 7.2(c). We do not look at COP and CMP
decisions, or other relevant rules of international law, which according to the
Vienna Convention would provide additional context. See Vienna Convention,
supra note 6.
19 UNFCCC, supra note 1, art. 7.2(c).
20 The first half of the sentence in Convention Article 7.2(c) can be decon-
structed to separate procedural and specific contextual considerations from the
key terms requiring analysis: “at the request of” is a procedural issue relating
to how matters can be brought before the COP and we address this in Part III;
additionally, “to address climate change and its effects” speaks to the types of
measures that can be coordinated and will therefore be included in the analysis
of “measures.” The second half of the Convention Article 7.2(c) and the cha-
peau provide broader context, which are addressed below.
21 Vienna Convention, supra note 6, art. 31.1.
22 UNFCCC, supra note 1, art. 7.2(c).
Endnotes: Exceptionalism United?: Unpacking UNFCCC
Article 7.2(c)
Endnotes: Exceptionalism United?: Unpacking UNFCCC
Article 7.2(c) continued on page 58
23 See UNFCCC, supra note 1, art. 1.
24 webSteR’S new woRlD college DictionaRy 508 (4th ed. 2001).
25 Id. at 320.
26 Id. at 892.
27 Id. at 19.
28 Vienna Convention, supra note 6, art. 31.2.
29 Id. art. 31.3(a).
30 Though beyond the scope of this initial analysis, further consideration could
be given to additional context such as COP decisions and CMP decisions,
which would constitute subsequent practice to the extent that they establish
agreement of the Parties on interpretation of UNFCCC provisions, as well as
other relevant rules of international law.
31 UNFCCC, supra note 1, art. 4.1(b) (mandating Parties to undertake measures
to “facilitate adequate adaptation to climate change”).
32 Id. art. 4.5.
33 Id. arts. 7.2(b)-(c) (providing that the COP can facilitate exchange of infor-
mation and coordination of measures taken to address climate change and its
effects).
34 Id. art. 6(a).
35 Id. art. 6(a).
36 Id. art. 7.2(b).
37 Id. art. 7.2(c).
38 Id. art. 8.2(c).
39 Id. arts. 4.5, 6(a), 7.2(b).
40 Id. art. 4.5.
41 KP, supra note 4, art. 10(b) (mandating Parties to undertake measures to
“facilitate adequate adaptation to climate change,” including, inter alia, sectoral
programs, adaptation technologies for spatial planning, mitigation, and adapta-
tion measures).
42 Id. art. 13.4(c) (addressing “facilitate” in the context of CMP functions); see
also id. 13.4(d)).
43 See id. art. 10(c), (e).
44 See id. art. 10(c).
45 See id. art. 2 (mandating the CMP to facilitate cooperation with respect to
Annex I Parties’ obligations to “enhance the individual and combined effec-
tiveness” of measures, by sharing experiences; exchanging information; and
improving comparability, transparency, and effectiveness; with a mandate to
take into account all relevant information).
46 Compare UNFCCC, supra note 1, art. 6(a), with KP, supra note 4, art. 10(e).
47 See UNFCCC, supra note 1, arts. 4.2(e)(i), 7.2(b), 8.2(e).
48 Id. art. 4.2(e)(i).
49 Id. art. 8.2(e).
50 See id. arts. 7.2(b), 7.2(c).
51 Compare id. art. 7.2(b), with id. art. 7.2(c).
52 See KP, supra note 4, art. 2.4 (referencing policies and measures regarding
KP, supra note 4, art. 2.1(a)).
53 See id. art. 2.4 (supporting coordination of measures via the elaboration
of ways and means, taking into account national circumstances and potential
effects); id. art. 9.1 (referencing UNFCCC reviews required by UNFCCC arts.
4.2(d) and 7.2(a) and requiring the CMP to “take appropriate action”); id. art.
8.2 (allowing the Secretariat to undertake coordination activities, such as coor-
dinating review teams based on parties’/IGOs’ proposals based on CMP guid-
ance).
