J. F. Pulvenis explains the genesis of the UNFCCC. Embarrassing!

The UNFCCC (United Nations Framework Convention on Climate Change) is based on missing, or weak and misleading terminology. To understand why, a brief look back on how the text of the Convention had been processed by the assigned Intergovernmental Negotiating Committee (INC) may help to understand its shortcomings better. As the working period of the INC lasted practically one year[1], the number of papers elaborating this process are few. Among them is Jean- François Pulvenis’ paper from 1994[2], which can be divided in the negotiation process and a brief analysis of the convention. About the analysis it is only to mention that for Pulvenis the Convention begins with Article 2, with the objective of: “stabilization of greenhouse gas concentration in the atmosphere”, while paid not any attention to the principle definitions of the Convention according Article 1.

Therefore the following excerpts concern only the pre-adoption period, looking particularly at ‘critical’ negotiating stages, and are in so far selective.

JF Pulvenis (p81): Fundamental decisions were taken in this regard by the Second World Climate Conference which took place in Geneva from 29 October to t November 1990, under the aegis of WMO, UNEP, UNESCO, IOC, FAO and ICSU and with the participation of 137 countries. In its final statement, the Conference adopted the following recommendation:

“9. Countries are urged to take immediate actions to control the risk of climate change with initial emphasis on actions that would economically and socially beneficial for other reasons as well. Nations should launch negotiations on a convention on climate change and related legal instruments without delay and with the aim of signing such convention in 1992”.

JF Pulvenis (p81/82): By UNGA Resolution 45/212 (adopted 21 December 1990) the General Assembly decided: “to establish a single intergovernmental negotiating process und the auspices of the General Assembly, supported by the UNEO and WMO, for the preparation by an INC of an effective framework convention on climate change, containing appropriate commitments, and any related instruments as might be agreed upon (…).(para. 1)”.

JF Pulvenis (p86): The sessions of the Committee were few (six effective) and relative short. The first in Washington took place in February 1991, the last in May 1992.

JF Pulvenis (p88): Further sessions were held: Nairobi (September 1991), Geneva (December 1991), New York (February 1992). “But — to put things bluntly — there was no real negotiations on many issues (if not most). There was only a progressive refining of the expression of antagonistic positions, through merging, consolidating and harmonizing related or similar proposals. AT most, negotiating on such issues was carried out ‘inside’ the main interest groups rather than among them”.

JF Pulvenis (p88): Pulvenis explains that even the December session actually produced nothing substantially, and the emerging text, a “Consolidated Working Document” at the end of the session had been “prepared by the secretariat under the guidance of the Chairman of the Committee and the Co-Chairmen of the Working Groups. According Pulvenis even during the Februar session, “Things remained unchanged”. At the end of this session a “ -Revised Text under negotiation- was produced and distributed, on 28 February 1992. It was generally pointed out at the time that it still contained about 800 brackets”.

JF Pulvenis (p.89): “To fulfil its mandate to prepare a draft convention and to adopt it before UNCED[3], there was no option left to the Committee but to meet again, for a last try, from 30 April to 8 May”. This was formally a “second part” if its fifth session in February 1992.

JF Pulvenis (p.89):

__Chairman Ripert took two sets of measures. First, he radically altered the organisation of the work of the Committee. Second, the Chairman cast aside the “Revised Text” even though the Committee had previously agreed that this text would constitute the basis for further negotiation. In its place, he prepared and submitted a series of working documents. ….In general terms, however, the new documents had the merit of supplying the Committee with a true single negotiating text, a consolidated draft convention.”

__But even these drastic measures were insufficient. Once resumed, the discussions very soon seemed to lead towards a renewed profileration of alternative brackets.

__This would have doomed irrevocably the possibility of adopting a convention before Rio.

__Chairman Ripert took a further and extreme step. It is not an overstatement to say that what he did was to practically confiscate the negotiation process and remove it from the Committee as a whole.

__On 8 May, the Chairman presented a final draft to the Plenary. While recognising the peculiar circumstances in which it had been elaborated, he made it clear that he did not expect a reopening of the negotiation or discussing on specific provision. Instead, he called for a decision on the overall draft.

JF Pulvenis (p.90):

__After consultation (on 8th May) during recess, the Chairman postponed the debate until the following day. He also reiterated that he expected the delegations not to proceed to a “page per page review” of the text, but to is adoption “as a package”.

__Thus the Plenary met once again on Saturday, 9 May 1992. That it was a “take it or leave it” situation was immediately put in evidence….

__He (the Chairman) reiterated that it was now too late to go back and that it had not been possible to do otherwise.

__To his final and very simple query (“Etes-vous d’accord”), there was no opposition, no dissenting voice was heard, and the Convention was so adopted.

JF Pulvenis (p.91):

__Clearly it is only as a result of this forceful drive led by Chairman Ripert that the INC was able to adopt the Convention in time for the Earth Summit.

__His effort in this respect were indeed fully vindicated when…. It was signed…..by 155 countries.

Remark

JF Pulvenis last comment says nothing about the quality of the draft, only praises the fact that the document was completed on time. The entire course of the negotiation shows that it was a farce and rather ridiculous than a professional performance appropriate to the matter. It is completely incomprehensible that this happened within the framework of the United Nations, which has lawyers and experts in abundance.

Footnotes:

[1] The processing started with the UN Resolution 45/212 of December 1990, para. 10, and ended with the adoption of the final draft of the convention on 9 May 1992.

[2] Pulvenis, Jean-François; 1994, “ The Framework Convention on Climate Change”; in: Lugi Campiglio (ed) et al.; The Environment after Rio –International Law and Economics; London, p. 71 –109.

[3] United Nations Conference on Environment and Development, in Rio de Janeiro, 3–14 June 1992 (also called Rio Conference 1992, or Earth Summit 1992)