If a tree falls in a Kyoto forest and nobody is there to hear it, will it be accounted for? An insider's view of the negotiations surrounding land use, land-use change and forestry for the second commitment period of the Kyoto Protocol

Review of European Community and International Environmental Law

Volumn 20, Issue 2, 2011, Pages 123-138

  Fry, Ian ^a  

^a Environment Department of the Government of Tuvalu   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

ACCOUNTABILITY; CLEAN DEVELOPMENT MECHANISM; FOREST MANAGEMENT; KYOTO PROTOCOL; LAND USE CHANGE; LAND USE PLANNING; LEGISLATIVE IMPLEMENTATION; WETLAND MANAGEMENT;

EID: 84555218000     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2011.00715.x     Document Type: Article

References (75)

1. See I. Fry, 'Twists and Turns in the Jungle: Exploring the Evolution of Land Use, Land-use Change and Forestry within the Kyoto Protocol', 11:2 RECIEL (2002), 159
2. I. Fry, 'More Twists, Turns and Stumbles in the Jungle: A further Exploration of Land Use, Land-use Change and Forestry Decisions within the Kyoto Protocol', 16:3 RECIEL (2007), 341.
3. See Decision 1/CMP.1, Consideration of Commitments for Subsequent Periods for Parties included in Annex I to the Convention under Article 3, Paragraph 9, of the Kyoto Protocol (FCCC/KP/CMP/2005/8/Add.1, 30 March 2006).
4. See Round Table on the Means to Reach Emission Reduction Targets: Summary by the Chair (FCCC/KP/AWG/2008/CRP.1, 3 June 2008).
5. See, e.g., C. Vrolijk, 'COP-6 Collapse or "to be Continued"... ', 77 International Affairs (2001), 163, at 167
6. M. Vespa, 'Climate Change 2011: Kyoto at Bonn and Marrakech', 29:2 Ecology Law Quarterly (2002), 395, at 409.
7. See J. Reilly, '2003 Yearbook Book Review: Reconstructing Climate Policy: Beyond Kyoto, by Richard B Stewart and Jonathon B. Weiner', 15:2 Colorado Journal of International Environmental Law and Policy (2004), 117, at 120.
8. During early discussions on whether or not to include LULUCF (or 'sinks', as they are generally called) it was noted that New Zealand intended to use 81% of its quantified emission reduction or limitation targets using sinks. See P. Taylor, 'Heads in the Sand as the Tide Rises: Environmental Ethics and the Law on Climate Change', 19:1 UCLA Journal of Environmental Law and Policy (2001), 247, at 266.
9. See, e.g., D. Reay, 'Spring Time for Sinks', 446:7137 Nature (12 April 2007), 727, at 728.
10. See S. Nilsson et al., Full Carbon Account for Russia, Interim Report IR-00-021 (International Institute for Applied Systems Analysis, August 2000), found at
11. See M. den Elzen et al., The Emissions Gap Report: Are the Copenhagen Accord Pledges Sufficient to Limit Global Warming to 2° C or 1.5° C? A Preliminary Assessment, Executive Summary (UNEP, 2010), 13, found at .
12. See T. Akanle et al., 'AWG-LCA 2, Second Part of the AWG-KP 5, and Twenty-eighth Sessions of the Subsidiary Body for Scientific and Technological Advice (SBSTA) and the Subsidiary Body for Implementation (SBI) of the UN Framework Convention on Climate Change, 2-13 June 2008, Bonn, Germany', 12:375, Earth Negotiations Bulletin (16 June 2008).
13. See H.S. Eggleston et al. (eds), 2006 IPCC Guidelines for National Greenhouse Gas Inventories, Prepared by the National Greenhouse Gas Inventories Programme (IGES, 2006), found at .
14. See E.-D. Schulze, quoted in Q. Schiermeier, 'Cycle Studies See Carbon Sinks Rise to Prominence', 414:6862 Nature (22 November 2001), 385.
15. See also S. Nilsson et al., n. 18 above, at 114
16. C. Streck and S.M. Scholz, 'The Role of Forests in Global Climate Change: Whence We Come and Where We Go', 82:5 International Affairs (2006), 861, at 863.
17. For a near complete textual description of the land-based approach, see 'Documentation to Facilitate Negotiations among Parties: Note by the Chair, Revised Addendum', found in Draft Decisions on Other Issues Identified in Paragraph 49 (c) of Document FCCC/KP/AWG/2008/8 (FCCC/KP/AWG/2009/10/Add.3/Rev. 2, 19 October 2009), Annex II, Option B, at 25.
18. See, e.g., the views expressed by a representative from the Canadian Parks and Wilderness Society, in C. Jackson et al., 'Cancún Climate Change Conference', ENB on the Side (8 December 2010).
19. See D.A. Wirth, 'The Sixth Session (Part two) and Seventh Session of the Conference of Parties to the Framework Convention on Climate Change', 96:3 American Journal of International Law (2002), 648, at 654.
20. See M. Grubb and F. Yamin, 'Climate Collapse at The Hague: What Happened, Why and Where Do We Go from Here?', 77:2 International Affairs (2001), 261, at 271.
21. See T. Akanle et al., 'Summary of the Bonn Climate Talks', 12:421 Earth Negotiations Bulletin (Monday, 15 June 2009).
22. 'Age-class legacy' or 'dynamic effects of age structure' is mentioned in Decision 16/CMP.1, n. 5 above, Annex, paragraph 1(h)(iii). It refers to the concept that some countries have mature forests sequestering carbon at a slow rate while other countries have relatively young trees which are sequestering carbon at a quicker rate. This, according to some, creates an unfair advantage for countries with younger forests. Others are concerned that they have forest plantations planted just prior to 1990 (when accounting for forests begins) and that they now are ready for harvesting. The high harvest rate would allegedly create a significant accounting liability for some countries. For a more detailed explanation, see I. Fry and M. Gutiérrez, In a Nutshell: A Guide to Land Use, Land-use Change and Forestry for Non-experts in Developing Countries, 2nd edn (Tidal Influence Media, 2009), found at .
23. See J. Penman et al. (eds), Good Practice Guidance for Land Use, Land-use Change and Forestry (IPCC, 2003), at 1.2-5.81.
24. See 'Further Elaboration of the Options, Elements and Issues Contained in Annex IV to Document FCCC/KP/AWG/2008/3 and Annex III to Document FCCC/KP/AWG/2008/5, including on Which Proposals Could Address Cross-cutting Issues, and How', in Submissions from Parties, Addendum (FCCC/KP/AWG/2009/MISC. 5/Add.1, 20 March 2009), Submission from Tuvalu ('Submission from Tuvalu'). See also discussion below on 'forest biomass decline'.
25. See Submission from Tuvalu, n. 42 above, at 2. This text proposal appeared in a non-paper of the facilitators in September 2009. See Contact Group on other issues (LULUCF), 'Non-paper by the Co-facilitators of the Spin-off Group: Options and Proposals on How to Address Definitions, Modalities, Rules and Guidelines for the Treatment of Land Use, Land-use Change and Forestry', Non-paper 2 (8 October 2009), found at . It never made it into any of the draft decision texts on LULUCF because it did not garner sufficient support and it was generally assumed that making 'forest management' - a compulsory activity in the second commitment period - would have the same accounting effect. Upon reflection, this assumption is probably incorrect due to the narrow definition that some Parties apply to 'forest management'.
26. See Decision 2/CMP.6, The Cancún Agreements: Land Use, Landuse Change and Forestry (FCCC/KP/CMP/2010/12/Add.1, 15 March 2011), paragraph 2.
27. This concern was in avertedly emphasized by Australia in a data submission made to the UNFCCC in 2009. Australia stated that uncertainties for data were high, estimated at up to + or - 40% for 2007. See Australian Government, Data Submission, Informal session discussion (4 October 2009), found at .
28. This approach uses a base period of forest activities undertaken in the period 2000-9 as the basis for determining a reference level. See 'Land Use, Land-use Change and Forestry (Integrated Version)', in Consideration of Further Commitments for Annex I Parties under the Kyoto Protocol: Revised Proposal by the Chair, n. 43 above, Chapter II, Annex I, paragraph 15 (Option 2 (baselines)).
29. For a brief description of the proposal by the G77 and China, see T. Akanle et al., 'Bonn Climate Change Talks - May/June 2010', 12:472 Earth Negotiations Bulletin (14 June 2010).
30. See selection of submissions on reference levels at UNFCCC, Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP): Land use, Land-use Change and Forestry (LULUCF) (UNFCCC, undated), found at .
31. See Government of Tuvalu, Forest Management Accounting Workshop (30 July 2010), found at .
32. See Small Roundwood Standard Contract (England-Wales) (August 2007), found at . This states: 'Force Majeure' means in relation to either party, any circumstances beyond the reasonable control of that party (including without limitation, any fire, explosion, flood, Act of God, strike, lock-out or other industrial action) other than fire or windblow damage as provided in Clause 6.3.4. The concept does not apply if the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it if the State has assumed the risk of that situation occurring.
33. See International Law Commission, 2005, Responsibility of States for Internationally Wrongful Acts 2001 (International Law Commission, 2005), Article 23, found at .
34. The EU has defined force majeure as 'low probability large emissions beyond the control of Parties'. See Hungary and the European Commission on behalf of the EU and its Member States, Submission of Information on Forest Management Reference Levels by the European Union as Requested by Decision 2/CMP.6: The Cancún Agreements: Land Use, Land-use Change and Forestry (8 April 2011), at 3, found at .
35. According to R. Valentini et al., in S. Nilsson, n. 18 above, at 110, old high-latitude forests tend to change from sinks to sources of carbon during mild winters.
36. See Contact Group on other issues (LULUCF), n. 46 above, at 3.
37. This concept was introduced in a joint presentation by Australia and Canada. They suggested that the total natural disturbances for a particular year would be calculated and if the emissions exceeded a threshold the natural disturbances would be classified as force majeure. See Governments of Australia and Canada, Implementing Force Majeure, Informal presentation by Australia and Canada, Tianjin (7 October 2010), found at .
38. See Government of Australia, 'Land Use, Land-use Change and Forestry (LULUCF): Submission to the AWG-KP and the AWG-LCA', Paper No 1 (March 2009), found in Further Elaboration of Options, Elements and Issues Contained in Annex IV to Document FCCC/KP/AWG/2008/3 and Annex III to Document FCCC/KP/AWG/2008/5, Including on Which Proposals Could Address Cross-cutting Issues and How: Submissions from Parties (FCCC/KP/AWG/2009/MISC.5, 9 March 2009), at 3.
39. See R. McLeod, Inquiry into the Operational Response to the January 2003 Bushfires in the ACT (Department of Urban Services, ACT Government, 2003), at 83.
40. Department of Sustainability and Environment, Fire and Victoria's Parks and Forests (Victorian Government Department of Sustainability and Environment, 2004), found at .
41. See 'Land Use, Land-use Change and Forestry (LULUCF) Sector', Submission to the AWG-KP and AWG-LCA (Government of Australia, 2009), at 3, found athttp://climatechange.gov.au/government/initiatives/unfccc/~/media/submissions/ international/Land-usechange- forestry-submission-AWG-KP-and%20AWG-LCA-Nov- 09.ashx>.
42. See Q. Schiermeier, 'That Sinking Feeling', 435:9, Nature (9 June 2005), 732, at 732.
43. See V. Blujdea, D.N. Bird and C. Robledo, 'Consistency and Comparability of Estimation and Accounting of Removal by Sinks in Afforestation/reforestation Activities', 15:1 Mitigation and Adaptation Strategies for Global Change, 1, at 14.
44. For a more detailed explanation of this concept, see I. Fry and M. Gutiérrez, n. 39 above, at 23.
45. See IPCC Task Force on National Greenhouse Gas Inventories, 'Revisiting the Use of Managed Land as a Proxy for Estimating National Anthropogenic Emissions and Removals', in H.S. Eggleston, N. Srivastava, K. Tanabe and J. Baasansuren (eds), Meeting Report, 5-7 May 2009 (IGES, 2010), 7, found at .
46. See, e.g., Government of Norway, Submission to the Ad-hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP): Information on Forest Management Reference Level (21 March 2011), at 4, found at .
47. See W.A. Kurz, T. Lemprière, G. Stinson and P. Graham, Accounting Options for Land Use, Land-use Change and Forestry: Forest Management (AWG-KP 6.1 - LULUCF, Accra, Ghana, 21-27 August 2008), at 14, found at .
48. See, e.g., Government of Australia, Land Use, Land-use Change and Forestry (LULUCF), Informal Data Submission (September 2009), at 1, found at .
49. See T. Akanle et al., n. 33 above.
50. See S. Brown, B. Lim and B. Schlamadinger, 'Evaluating Approaches for Estimating Net Emissions of Carbon Dioxide from Forest Harvesting and Wood Products', in Report of an IPCC Meeting in Dakar/Senegal, 5-7 May 1998 (IPCC, undated), found at .
51. See, e.g., H. Montgomery, New Zealand's Views on LULUCF in a Post-2012 Climate Change Agreement, New Zealand Ministry of Agriculture and Forestry, AWG KP Accra, Ghana, August 2008 (undated), found at .
52. For an explanation of the initial three approaches for reporting HWP, see S. Brown et al., n. 96 above, at 4.
53. According to Tonosaki, the atmosphere approach gives a strong incentive to export and a strong incentive to import, the production approach gives an incentive to import, and the stock change approach gives an incentive to import. See M. Tonosaki, 'Harvested Wood Products Accounting in the Post-Kyoto Commitment Period', 55:6 Journal of Wood Science, at 393.
54. This concept assumes that all carbon in biomass is oxidized (meaning that all the carbon becomes emissions in the year that the trees were cut). Therefore there is no accounting for storage of carbon in HWP. For a further explanation, see I. Fry and M. Gutiérrez, n. 39 above, at 19.
55. See T. Hiraishi, Presentation on the IPCC Expert Meeting on HWP, Wetlands and Soil, N2O, 19-21 October 2010, Geneva, found in Second Workshop on the Revision of the UNFCCC Annex I Reporting Guidelines for Reporting of Inventories under the Convention, 3-4 November 2010, Langer Eugen, 1916 Bonn, Germany (undated), found at .
56. See V. Blujdea, et al., n. 87 above, at 11.
57. For an overview of some of the issues, see T. Akanle et al., n. 33 above.
58. See T. Akanle et al., 'Summary of the Tianjin Climate Change Talks', 12:485, Earth Negotiations Bulletin (12 October 2010).
59. See M. Gutiérrez et al., 'Summary of Fifth Session of the Ad Hoc Working Group on Long-term Cooperative Action under the United Nations Framework Convention on Climate Change (AWG-LCA 5) and the Seventh Session of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP 7)', 12:407, Earth Negotiations Bulletin (11 April 2009).
60. See C. Robledo and J. Blaser, Key Issues on Land Use, Land-use Change and Forestry (LULUCF) with an Emphasis on Developing Country Perspectives (UNDP, September 2008), at 14, found at .
61. See R.J. Zomer et al., 'Land Area Eligible for Afforestation and Reforestation within the Clean Development Mechanism: A Global Analysis of the Impact of Forest Definition', 13:3 Mitigation and Adaptation Strategies for Global Change, 219, at 221.
62. For a definition of 'additionality', see I. Fry and M. Gutiérrez, n. 39 above, at 7.
63. For concerns about additionality, see S. Ferrey, 'When 1 + 1 No Longer Equals 2: The New Math of Legal 'Additionality' Controlling World and US Global Warming Regulation', 10:2 Minnesota Journal of Law, Science & Technology, (2001), 591, at 642.
64. See also O.P.R. Van Vliet et al., 'Forestry Projects under the Clean Development Mechanism: Modelling of the Uncertainties in Carbon Mitigation and Related Costs of Plantation Forestry Projects', 61:1-2 Climatic Change, 123, at 152.
65. See C. Streck and S.M. Scholz, 'The Role of Forests in Global Climate Change: Whence We Come and Where We Go', 82:5 International Affairs (2006), 861, at 871.
66. See A. Kossoy and P. Ambrosi, State and Trends of the Carbon Market 2010 (World Bank, 2010), at 25, found at .
67. See R. Carrere, Genetically Modified Trees: The Ultimate Threat to Forests (World Rainforest Movement, 2004), at 58, found at .
68. See J. Schwartz, 'Whose Words These are I Think I Know: How Kyoto May Change Who Controls Biodiversity', 14:2 New York University Environmental Law Journal (2005-2006), 421, at 480.
69. See R. Sampaio, 'Seeing the Forest for the Treaties: The Evolving Debates on Forest and Forestry Activities under the Clean Development Mechanism Ten Years after the Kyoto Protocol', 31:3 Fordham International Law Journal (2008), 634, at 682.
70. See Decision 9/CMP.3, 'Implications of Possible Changes to the Limit for Small-scale Afforestation and Reforestation Clean Development Mechanism Project Activities', in Report of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol on Its Third Session, Bali, 3-15 December 2007, Addendum, Part Two: Action Taken by the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol at Its Third Session (FCCC/KP/CMP/2007/9/Add.1, 14 March 2008).
71. J.D. Unruh, 'Carbon Sequestration in Africa: The Land Tenure Problem', 18:4 Global Environmental Change (2008), 700, at 703.
72. See E. Boyd et al., 'Small-scale Forest Carbon Projects: Adapting CDM to Low-income Communities', 17:2 Global Environmental Change (2007), 250, at 257.
73. See Decision 2/CMP.5, 'Further Guidance Relating to the Clean Development Mechanism', in Report of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol on its Fifth Session, Copenhagen, 7-19 December 2009, Addendum, Part Two: Action Taken by the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol at Its Fifth Session (FCCC/KP/CMP/2009/21/Add.1, 30 March 2010).
74. See M. den Elzen et al., n. 19 above, at 8.
75. See Q. Cheng et al., 'Summary of the Bangkok Climate Talks', 12:499, Earth Negotiations Bulletin (11 April 2011).