Download Master in de rechten

Faculteit Rechtsgeleerdheid
Universiteit Gent
Academiejaar 2010-11
THE LEGAL ARCHITECTURE
FOR THE POST-KYOTO CLIMATE CHANGE REGIME
Masterproef van de opleiding
‘Master in de rechten’
Ingediend door
Lara Desimpel
studentennr. 00604435
major nationaal en internationaal publiekrecht en milieurecht
Promotor: Prof. dr. Frank Maes
Commissaris: Nils Goeteyn
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................ II!
ACKNOWLEDGEMENTS ..................................................................................................... VII!
LIST OF ABBREVIATIONS .................................................................................................VIII!
INTRODUCTION ...................................................................................................................... IX!
MASTER DISSERTATION ........................................................................................................ 1!
1.! CLIMATE CHANGE: AN OVERVIEW.............................................................................. 1!
A.! WHAT IS CLIMATE CHANGE?................................................................................................ 1!
B.! THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE ............................................... 3!
B.1! THE INSTITUTION ............................................................................................................... 3!
B.2! ITS FINDINGS...................................................................................................................... 5!
2.! THE START OF INTERNATIONAL ACTION.................................................................. 6!
A.! THE UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE ...................... 6!
A.1! HISTORY ............................................................................................................................ 6!
A.2! OBJECTIVE AND PRINCIPLES ............................................................................................... 7!
A.2.1! Objective ...................................................................................................................... 8!
A.2.2! The principle of common but differentiated responsibilities (CDR)............................ 9!
A.2.3! The precautionary principle ...................................................................................... 12!
A.3! COMMITMENTS ................................................................................................................ 13!
A.4! INSTITUTIONAL FRAMEWORK........................................................................................... 15!
B.! LIKE-MINDED PARTIES FOUND EACH OTHER: NEGOTIATING BLOCKS ............................ 18!
C.! THE 1997 KYOTO PROTOCOL ............................................................................................ 21!
C.1! HISTORY .......................................................................................................................... 21!
C.2! COMMITMENTS ................................................................................................................ 24!
C.3! INSTITUTIONAL FRAMEWORK .......................................................................................... 29!
C.4! COMPLIANCE MECHANISM ............................................................................................... 30!
II
C.5! COMMENTS...................................................................................................................... 33!
3.! 2012- THE RACE TO “REPLACE” KYOTO ................................................................... 34!
A.!
IDENTIFICATION OF THE PROBLEM
.................................................................................... 34!
B.! IDENTIFICATION OF SOME KEY ISSUES POST-2012............................................................. 35!
B.1! BROADENING OF THE PARTICIPATION .............................................................................. 35!
B.1.1! Large developing nations........................................................................................... 35!
B.1.2! The United States of America .................................................................................... 37!
B.2! COMPLIANCE ................................................................................................................... 37!
4.! PROGRESS AFTER THE ENTRY INTO FORCE OF THE KYOTO- PROTOCOL . 38!
A.! MONTREAL CONFERENCE (2005)....................................................................................... 38!
A.1! MEETING OF THE PARTIES (CMP1).................................................................................. 38!
A.2! CONFERENCE OF THE PARTIES (COP11).......................................................................... 40!
B.! BALI CONFERENCE (2007).................................................................................................. 40!
B.1! MEETING OF THE PARTIES (CMP3) ................................................................................. 41!
B.1.1! AWG-KP .................................................................................................................... 41!
B.1.2! Article 9 of the Kyoto Protocol .................................................................................. 42!
B.2! CONFERENCE OF THE PARTIES (COP13).......................................................................... 42!
C.! COPENHAGEN CONFERENCE (2009)................................................................................... 46!
C.1! MEETING OF THE PARTIES (CMP5) ................................................................................. 47!
C.2! CONFERENCE OF THE PARTIES (COP15).......................................................................... 47!
C.3! THE COPENHAGEN ACCORD ............................................................................................ 48!
C.3.1! Content ....................................................................................................................... 48!
C.3.2! Legal status ................................................................................................................ 52!
D.! CANCUN CONFERENCE (2010)............................................................................................ 54!
D.1! MEETING OF THE PARTIES (CMP6).................................................................................. 54!
D.2! CONFERENCE OF THE PARTIES (COP16).......................................................................... 55!
D.3! CANCUN AGREEMENTS .................................................................................................... 55!
III
5.! THE POST-2012 LEGAL REGIME ................................................................................... 58!
A.! A LEGALLY BINDING REGIME? ........................................................................................... 58!
B.! WHAT EXACTLY ARE THE LEGAL OPTIONS? ...................................................................... 63!
B.1! AMENDMENTS TO THE KYOTO PROTOCOL ....................................................................... 63!
B.1.1! Procedure for amending the Protocol- Article 20 Kyoto Protocol............................ 63!
B.1.2! Strengths and weaknesses .......................................................................................... 65!
B.1.3! Negotiating positions ................................................................................................. 66!
B.1.4! Current proposals? .................................................................................................... 67!
B.1.5! Will there be a gap? ................................................................................................... 68!
B.2! AMENDMENTS TO THE UNFCCC .................................................................................... 69!
B.2.1! Procedure to amend the Convention- Article 15 UNFCCC ...................................... 69!
B.2.2! Strengths and weaknesses .......................................................................................... 69!
B.2.3! Negotiating positions ................................................................................................. 70!
B.2.4! Current proposals to amend? .................................................................................... 70!
B.2.5! Will there be a gap? ................................................................................................... 70!
B.3! A NEW PROTOCOL UNDER THE UNFCCC........................................................................ 71!
B.3.1! Procedure for the adoption of a protocol- Article 17 UNFCCC ............................... 71!
B.3.2! Strengths and weaknesses .......................................................................................... 73!
B.3.3! Negotiating positions ................................................................................................. 74!
B.3.4! Current proposals? .................................................................................................... 74!
B.3.5! Will there be a gap? ................................................................................................... 75!
B.4! EXPAND COP DECISIONS ................................................................................................. 75!
B.4.1! Procedure to adopt decisions..................................................................................... 75!
B.4.2! Legal value of COP decisions.................................................................................... 76!
B.4.3! Strengthen COP decisions by unilateral declarations?............................................. 79!
B.4.4! Strengths and weaknesses .......................................................................................... 80!
B.4.5! Negotiating positions ................................................................................................. 81!
IV
B.4.6! Will there be a gap? ................................................................................................... 81!
B.5! PROCEED OUTSIDE THE UNFCCC FRAMEWORK.............................................................. 82!
C.! CAN WE AVOID A GAP POST-2012? ..................................................................................... 83!
C.1! LEGAL OPTIONS TO ENSURE THAT THERE IS NO GAP ......................................................... 83!
C.1.1! Provisional application of a follow-up agreement .................................................... 83!
C.1.2! Extending the first commitment period under the Kyoto Protocol ............................ 85!
C.1.3! Proceeding through COP decisions while working towards an LBA........................ 86!
C.2! LEGAL IMPLICATIONS OF A GAP ....................................................................................... 86!
C.2.1! Keeping the flexible mechanisms into force after the first commitment period?....... 86!
C.2.1.1! In general ............................................................................................................. 86!
C.2.1.2! Joint Implementation ........................................................................................... 87!
C.2.1.3! The Clean Development Mechanism................................................................... 89!
C.2.1.4! Emission Trading................................................................................................. 90!
C.2.2! Compliance mechanism ............................................................................................. 91!
6.! CONCLUSION ...................................................................................................................... 92!
NEDERLANDSE SAMENVATTING ...................................................................................... 94!
INDEX OF AUTHORITIES...................................................................................................... 96!
A.! LEGISLATION ...................................................................................................................... 96!
A.1! TREATIES ......................................................................................................................... 96!
A.2! RESOLUTIONS .................................................................................................................. 96!
A.3! OTHER ............................................................................................................................. 96!
B.! UNFCCC DOCUMENTS ...................................................................................................... 97!
B.1! COP DECISIONS .............................................................................................................. 97!
B.2! CMP DECISIONS.............................................................................................................. 98!
B.3! UNFCCC- CUBMISSIONS FROM PARTIES ...................................................................... 100!
B.4! OTHER UNFCCC DOCUMENTS ..................................................................................... 101!
C.! OTHER SOURCES OF INTERNATIONAL LAW ...................................................................... 102!
V
C.1! CASE LAW OF THE ICJ ................................................................................................... 102!
C.2! UNITED NATIONS DOCUMENTS ..................................................................................... 103!
C.3! IPCC DOCUMENTS ........................................................................................................ 103!
D.! WRITINGS OF LEARNED AUTHORS ...................................................................... 103!
D.1! MONOGRAPHS ............................................................................................................... 103!
D.2! ARTICLES....................................................................................................................... 108!
D.3! INTERNET SOURCES........................................................................................................ 113!
E.! MISCELLANEOUS ........................................................................................................ 118!
VI
ACKNOWLEDGEMENTS
Although writing a master dissertation is mainly an individual work, several people have
helped me in different ways. I wish to thank them for their efforts.
First of all, I wish to thank my promotor, Dr. Frank Maes, who has always been enthusiastic
about this topic and put documents to my disposal that helped me a lot. I am equally grateful
to Nils Goeteyn, who helped me with his insightful comments. A sincere thanks to both of
them for their willingness to supervise my dissertation and constructive commentaries to the
text.
Furthermore, I would like to thank Lieven Stalmans, who helped me look at the problem
from the side of the industry, which is not very familiar to me.
Lastly, a special thanks to my parents, family and friends who, with their kind support, have
contributed directly and indirectly to the pages that follow below.
VII
LIST OF ABBREVIATIONS
AA: Assigned Amount
AAU: Assigned Amount Unit
AOSIS: Alliance of Small Island States
AWG-KP: Ad Hoc Working Group on Further Commitments for Annex I Parties under the
Kyoto Protocol
AWG-LCA: Ad Hoc Working Group on Long-term Cooperative Action under the
Convention
CDM: Clean Development Mechanism
CER: Certified Emission Reduction
COP: Conference of the Parties
CMP: Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol
ERU: Emission Reduction Unit
EU: European Union
G-77: Group of 77
GHG: Greenhouse Gas
ICJ: International Court of Justice
IPCC: Intergovernmental Panel on Climate Change
JI: Joint Implementation
LDC: Least Developed Country
NAMA: Nationally Appropriate Mitigation Action
QELRO: Quantified Emission Limitation and Reduction Objective
RMU: Removal Unit
UG: Umbrella Group
UN: United Nations
UNCED: United Nations Conference on Environment and Development
UNEP: United Nations Environment Programme
UNFCCC: United Nations Framework Convention on Climate Change
US: United States of America
WMO: World Meteorological Organization
WTO: World Trade Organization
VIII
INTRODUCTION
Background
Climate change is increasingly recognized as the greatest environmental challenge of our
time. Sea level rise, loss of biodiversity, increase of heat-related mortality and water stress
are only some of the effects that we are experiencing, or will start experiencing in the near
future. The reports of the Intergovernmental Panel on Climate Change are generally
acknowledged and the conclusions of its latest report made the case for urgent action to fight
climate change stronger than ever before.
To combat global climate change will demand a global answer, in the form of an
unprecedented international cooperation and a fundamental switch of our economy and way
of living. The main cause for the problem is namely fundamental to our world economies: the
burning of fossil fuels for energy use. In this sense, climate change is essentially development
issue. Any solution to the problem will therefore have to embrace the needs and interests of
all countries, or countries will fail to abide by it.
Because of the enormous interests that are in play, progress in the negotiations is only made
slowly. Fundamental disagreements between developed and developing Parties, between the
United States and the European Union, between large developing nations and small islands
generally dominate the negotiations. Despite the doomsday scenarios that occupy the climate
change field, there is no point in taking a cynical view or apathetic stance. Even if the
solution can never be perfect, many good things can happen and will have to happen.
IX
Description of the problem
In order to combat climate change, Parties concluded the United Nations Framework
Convention on Climate Change (UNFCCC) in 1992. Five years later, the Kyoto Protocol to
this Convention was adopted. Although this protocol can hardly be regarded as perfect, it
indicated a significant milestone. The Kyoto Protocol sets forth emission reduction and
limitation commitments for developed nations, in a specific time period from 2008 until
2012. A new agreement must enter into force by 1 January 2013, or a gap between the two
legal regimes will occur. This gap would be damaging from an ecological point of view,
would abate incentives for public and private entities to combat climate change and it
endangers the continuation of the mechanisms established by the Kyoto Protocol.
Since the entry into force of the Kyoto Protocol, Parties are negotiating on how the legal
architecture of the post-2012 period should look like. Obviously, circumstances have changed
a lot since the time of the conclusion of the Convention and the Kyoto Protocol. The political
and economic reality of some non-Annex I Parties is fundamentally different than a few
decades ago. Some nations who qualified as developing nations at the time, are now members
of the OECD, or classify as high-income countries in the World Bank data. Furthermore, the
acknowledgement that greenhouse gas emissions of some developing nations are reaching
levels close to, or as high as those of developed nations is a compelling argument to claim
that the responsibility can no longer solely lie on the developed nations as such defined in the
UNFCCC.
Up to now, Parties have been unable to reach consensus on the post-2012 legal architecture
of the climate change regime. Developed nations prefer a regime that includes obligations for
all large emitters, whether they are developed or developing nations. Developing countries
for their part claim that developed nations still need to take responsibility for their historical
emissions, and call out that even if their average emissions are as high; the emissions per
capita are still far below those of as developed nations. Despite these fundamental
differences, a strong system of international governance will be necessary, both for
ecological reasons and to manage the huge investments that are being made by both the
public and private sector.
X
Approach
In this thesis, I aim to provide an overview of the problems that arise with the legal
architecture of the climate change regime. I will start in the first chapter with providing a
brief introduction to the process of climate change itself, the Intergovernmental Panel on
Climate Change and its findings. In the second chapter, the two existing treaties on the
subject, the UNFCCC and the Kyoto Protocol are examined. How did these two agreements
come about? Which commitments do they contain, and how is compliance with these
commitments ensured?
After this overview of the existing framework, the third chapter summarizes the post-2012
problem and identifies some key issues. The fourth chapter then continues with the progress
that is made with regards to a solution for the post-2012 problem. The different Conferences
and Meetings of the Parties to the UNFCCC and Kyoto Protocol with relevance to the subject
are analyzed.
The fifth chapter lists the legal options that exist for the post-Kyoto legal framework. The
procedure, strengths and weaknesses, negotiating positions of the parties with regard to those
options and information relating to a gap are examined. Additionally, the possibilities to
avoid a gap between the first commitment period and a follow-up agreement are examined.
The sixth chapter is the final chapter of this thesis. It offers a prospect with regards to the
coming
decisions,
and
gives
a
reflection
on
this
dissertation.
XI
MASTER DISSERTATION
1. CLIMATE CHANGE: AN OVERVIEW
A. WHAT IS CLIMATE CHANGE?
According to the United Nations Framework Convention on Climate Change1, “climate
change” means ‘a change of climate which is attributed directly or indirectly to human activity
that alters the composition of the global atmosphere and which is in addition to natural climate
variability observed over comparable time periods’ (UNFCCC, article 1.2, emphasis added).
The cause of this human-induced climate change is an excess of heat-trapping gases, or
greenhouse-gases (GHGs). These gases operate much like the glass of a greenhouse. Under
normal circumstances, part of the sun’s energy radiates back into space after it has reached the
earth. GHGs disturb this process, by preventing more energy from radiating back and therefore
cause an additional warming of the earth.2 GHGs mainly emanate from the burning of fossil
fuels, agriculture, waste dumps and deforestation.3
The warming that will occur due to the increase in GHGs is expected to cause severe adverse
impacts on the environment, human health, economic activity, food security and natural
resources.4 More concretely, climate change will increase desertification, land degradation, the
intensity of floods, the incidence of heat-related mortality, the severity of droughts, and
decrease food security and crop yields.5 By means of example; scientists believe that by 2020,
1
United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc. No. 102-38,
1771 U.N.T.S. 107 (hereinafter: UNFCCC); elaborated infra in 2.A: The United Nations Framework
Convention on Climate Change.
2
UNFCCC, Fact sheet: An introduction to the United Nations Framework Convention on Climate
Change (UNFCCC) and its Kyoto Protocol, http://unfccc.int/press/fact_sheets/items/4978.php.
3
IPCC (ed.), “Summary for Policymakers” in IPCC, Climate Change 2007: Synthesis Report,
http://www.ipcc.ch/publications_and_data/ar4/syr/en/spm.html, (1) (hereinafter: IPCC, Summary
Policymakers), 5.
4
IPCC (ed.), “Summary for Policymakers” in IPCC, Climate Change 2007: The Physical Science
Basis, Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental
Panel on Climate Change, http://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1-spm.pdf, (1)
(hereinafter: Working Group I Report), 7-8.
5
Working Group I Report, supra note 4, 7-8.
1
between 75 and 250 million people in Africa will be exposed to water stress due to climate
change. In some countries, yields from agriculture could be reduced up to 50%. And in large
parts of the world, a significant loss of biodiversity is projected to occur.6
The United Nations (UN) General Assembly focussed on climate change on numerous
occasions.7 In April 2007, the United Kingdom brought the matter for the UN Security
Council, calling it a matter of “collective security in a fragile and increasingly interdependent
world”.8 It was the first -and until now only- time that the Security Council debated on the
effects of climate change on international peace and security. Some governments contested the
suitability of this forum, while others welcomed the initiative.9 The view that climate change
may constitute a threat to international, national and human security has also been taken up by
the UN Development Program and the UN Secretary General.10
The main scientific basis for the observance of climate change, are the reports of the
Intergovernmental Panel on Climate Change (IPCC).
6
IPCC, Summary Policymakers, supra note 3, 11-12.
Resolution 65/159 of the United Nations General Assembly, (4 March 2011) UN Doc. A/RES/65/159;
Resolution 64/73 of the United Nations General Assembly, (29 January 2010), UN Doc. A/RES/64/73;
Resolution 43/53 of the United Nations General Assembly (6 December 1988), UN Doc. A/RES/43/53
(1988) (hereinafter: Resolution 43/53 GA); For an overview of all resolutions in this field:
http://unbisnet.un.org:8080/ipac20/ipac.jsp?session=J1909926B348T.24241&menu=search&aspect=po
wer&npp=50&ipp=20&spp=20&profile=bib&ri=1&source=%7E%21horizon&index=.SW&term=clim
ate+change+and+.UD%3Dares%2F*&x=0&y=0&aspect=power.
8
Security Council, SC/9000, Security Council holds first- ever debate on impact of climate change on
peace, security, hearing over 50 speakers, 17 April 2007, Department of Public Information,
http://www.un.org/News/Press/docs/2007/sc9000.doc.htm.
9
Ibid; F. SINDICO, “Climate Change: A Security (Council) Issue?”, CCLR 2007, vol 1., 29-34; UNITED
NATIONS ENVIRONMENT PROGRAMME, UNEP Year Book 2008- An Overview of Our Changing
Environment, Nairobi, UNEP, 2008 (hereinafter: UNEP, UNEP Year Book 2008), 14; J. BRUNNÉE,
“Climate change, global environmental justice and international environmental law” in J. EBBESSON
and P. OKOWA, (eds.) Environmental law and justice in context, Cambridge, Cambridge University
Press, 2008, (316) 328; C. SCHWARTE and R. BYRNE, “International climate change litigation and the
negotiation process”, Foundation for International Environmental Law and Development Working
paper 2010, http://www.field.org.uk/files/FIELD_cclit_long_Oct.pdf, (1) (hereinafter: C. SCHWARTE,
International climate change litigation), 8.
10
For an overview of this estimation, see: B. WISNER et al., “Climate Change and Human Security”,
(15 April 2007), www.radixonline.org/cchs.html.
7
2
B. THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE
B.1 The institution
In 1988, the United Nations Environment Programme (UNEP) and the World Meteorological
Organization (WMO) established the IPCC.11 The IPCC is an intergovernmental body, open to
all member countries of the United Nations (UN) and the WMO.12 Its goal is to provide clear
scientific assessments on the current state of knowledge in climate change and the potential
environmental and socio-economic impacts.13 Despite the fact that the IPCC is open to all
countries, not all countries have a same influence in the results. In the beginning, the IPCC
struggled with legitimacy concerns because of a lack of effective participation of developing
countries. It led to the establishment of an ad hoc working group to increase developing
country partaking.14 Notwithstanding efforts from an IPCC Trust Fund to help out in the
financing of research in developing countries, the division between OECD15 and non-OECD
researchers in the making of the latest IPCC Assessment Report was still 2:1.16
The work of the IPCC is divided among three working groups. The first working group
examines the ‘physical science basis’, the second the ‘impacts, adaptation and vulnerability’
and the third the ‘mitigation of climate change’. The IPCC does not conduct any research
itself. To the contrary, it reviews and assesses information produced by thousands of scientists
11
This joint action was endorsed by the General Assembly: Resolution 43/53 GA, supra note 7.
Intergovernmental
Panel
on
Climate
Change,
Organization,
http://www.ipcc.ch/organization/organization.shtml (As of 2 April 2011, 194 countries are members of
the IPCC).
13
Resolution 43/53 GA, supra note 7, §5; Intergovernmental Panel on Climate Change, Organization,
http://www.ipcc.ch/organization/organization.shtml.
14
WMO/UNEP INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Report of the Second Session of
the WMO/UNEP Intergovernmental Panel on Climate Change, Nairobi, World Climate Programme
Publication Series, 1989, 18-20.
15
The Organization for Economic Co-operation and Development, °1961, consists of 34 member
countries that negotiate, study and coordinate a social and economic policy:
http://www.oecd.org/home/0,2987,en_2649_201185_1_1_1_1_1,00.html.
16
This unequal division is used by some developing countries as a ground to undermine the IPCC
results: J. BARNETT and J. CAMPBELL, Climate Change and Small Island States- Power, Knowledge
and the South Pacific, London, Earthscan, 2010 (hereinafter: J. BARNETT, J. CAMPBELL, Climate
Change and Small Island States), 61-62; To the contrary, it is hard to see another way to remedy this
situation than with a Trust Fund.
12
3
all over the world.17 This assessment involves peer review by experts, as well as review by
governments. Governments also participate in the plenary Sessions where results are adopted
and approved.18 If governments endorse the IPCC reports, this implies recognition of the
authority of their scientific content.19 The IPCC is considered to be the leading international
body for the assessment of climate change.20
17
Intergovernmental Panel on Climate Change, Principles governing IPCC work, Vienna, 1998, §3,
http://www.ipcc.ch/pdf/ipcc-principles/ipcc-principles.pdf.
18
This participation by governments presumably even renders the results weaker than if they would
have been written by scientists alone: H. E. OTT, “Climate Policy Post-2012- A Roadmap”, Tällberg
Foundation
Discussion
Paper
2007,
http://www.wupperinst.org/uploads/tx_wibeitrag/Ott_Taellberg_Post-2012.pdf, (1) (hereinafter: H. E.
OTT, Climate Policy Post-2012), 10.
19
Intergovernmental
Panel
on
Climate
Change,
Organization,
http://www.ipcc.ch/organization/organization.shtml; For example: UNFCCC, Other Action taken by
the Conference of the Parties, Annex: The Geneva Ministerial Declaration, in Report of the Conference
of the Parties on its second session, held at Geneva from 8 to 19 July 1996, Addendum Part Two:
Action Taken by the Conference of the Parties, FCCC/CP/1996/15/Add.1, (29 October 1996)
(hereinafter: Geneva Ministerial Declaration), 71,“2: Recognize and endorse the Second Assessment
Report of the Intergovernmental Panel on Climate Change (IPCC) as currently the most
comprehensive and authoritative assessment of the science of climate change”.
20
Geneva Ministerial Declaration, supra note 19, §2; UNFCCC, Decision 1/CP.11, Dialogue on longterm cooperative action to address climate change by enhancing implementation of the Convention, in
Report of the Conference of the Parties on its eleventh session, held at Montreal from 28 November to
10 December 2005, Addendum Part Two Action Taken by the Conference of the Parties at its eleventh
session, FCCC/CP/2005/5/Add.1, (30 March 2006) (hereinafter: Decision 1/CP.11), §3: “Agrees
that
the dialogue will be informed by the best available scientific information and assessment on climate
change and its impacts from the Intergovernmental Panel on Climate Change”; J. BARNETT, J.
CAMPBELL, Climate Change and Small Island States, supra note 16, 53; P. W. BIRNIE, A. E. BOYLE
and C. REDGWELL, International law and the environment, Oxford, Oxford University Press, 2009,
337; A. DESSLER, and E. PARSON, The Science and Politics of Global Climate Change- A Guide to the
Debate, Cambridge, Cambridge University Press, 2006 (hereinafter: A. DESSLER, E. PARSON, The
Science and Politics of Global Climate Change), 12; P. G. HARRIS (ed.), Europe and global climate
change: politics, foreign policy and regional cooperation, Cheltenham, Edward Elgar Publishing
Limited, 2007, 6; S. FREELAND, “The Kyoto Protocol: An Agreement without a future?”, UNSW Law
Journal 2001, vol. 24, (532) (hereinafter: S. FREELAND, The Kyoto Protocol: An Agreement without a
future?), 534; A. MACEY, “Climate Change: Governance Challenges for Copenhagen”, Global
Governance 2009, vol.15, (443) (hereinafter: A. MACEY, Governance Challenges for Copenhagen),
445.
4
B.2 Its findings
The IPCC’s Fourth Assessment Report injected a new sense of urgency into the climate
change negotiations.21 It ensures that warming of the climate system is unequivocal, as is now
evident from observations of increases in global average air and ocean temperatures,
widespread melting of snow and ice, and rising global average sea level.22
According to the IPCC, it is ‘very likely’23 that the increase in global average temperature is
due to the observed increase in anthropogenic greenhouse gas concentrations.24 The global
GHG emissions due to human activities have grown since pre-industrial times, with an
increase of 70% between 1970 and 2004.25 Although this report already puts its conclusions in
strong terms, it must be noted that it only reviewed scientific research published until the
beginning of 2006. The ‘Global Carbon Project’, a consortium of research programmes, states
that emissions have increased faster than any of the scenarios set by the IPCC.26
The IPCC moreover submits that there is high confidence that neither adaptation nor
mitigation alone,27 can avoid all the impacts of climate change; they can complement each
other to significantly reduce the risks of climate change.28
The scientific debate between the “believers” and the climate change “skeptics” is generally
over. Today, the vast majority of scientists and policy makers concurs with the findings of the
IPCC. In this thesis, I will depart from the IPCC’s findings without questioning these scientific
data.
21
J. BRUNNÉE, “From Bali to Copenhagen: Towards a Shared Vision for a Post-2012 Climate
Regime?”, MJIL 2010, vol.25, (86) (hereinafter: J. BRUNNÉE, From Bali to Copenhagen), 90; A. M.
HALVORSSEN, “Global Response to Climate Change- From Stockholm to Copenhagen”, DULR 2008,
vol. 85, (841) (hereinafter: A.M. HALVORSSEN, Global Response to Climate Change), 842; A. JORDAN
and T. RAYNER, “The evolution of climate policy in the European Union: an historical overview” in A.
JORDAN, D. HUITEMA, H. VAN ASSELT, T. RAYNER and F. BERKHOUT, Climate Change Policy in the
European Union- Confronting the Dilemmas of Mitigation and Adaptation?, Cambridge, Cambridge
University Press, 2010, (52) 71; S. OBERTHÜR, “EU Leadership on Climate Change: Living up to the
Challenges” in European Commission, The European Union and World Sustainable Development:
Visions of Leading Policy Makers & Academics, Luxembourg, Office for Official Publications of the
European Communities, 2008, (41) 47.
22
Working Group I Report, supra note 4, 5.
23
Very likely means more than 90 percent likely: Working Group I Report, supra note 4, 3, no. 6.
24
Working Group I Report, supra note 4, 15; IPCC, Summary Policymakers, supra note 3, 5.
25
Ibid.
26
UNEP, UNEP Year Book 2008, supra note 9, 4.
27
Adaptation refers to the preparation for climate change that cannot be avoided, mitigation to the
reduction of greenhouse gas emissions: T. E. WIRTH, “A Way forward on Climate Change”, HLPR
2008, vol. 2, (313) (hereinafter: T. E. WIRTH, A Way forward on Climate Change), 316.
28
Summary Policymakers, supra note 3, 19.
5
2. THE START OF INTERNATIONAL ACTION
A. THE UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE
CHANGE
A.1 History
Already in the 1980’s, the UN General Assembly declared that climate change was a “common
concern of mankind” and that necessary and timely action should be taken to deal with this
issue.29 After the presentation by the IPCC of its first Assessment Report,30 negotiations about
a Climate Treaty were initiated immediately. The actual decision to establish one single
intergovernmental negotiating process, namely the ‘Intergovernmental Negotiating Committee
for a Framework Convention on Climate Change’31, was taken by the General Assembly.32
Only 15 months after the foundation of this Negotiating Committee, an agreement was
reached. This agreement, the United Nations Framework Convention on Climate Change
(UNFCCC), was signed during the United Nations Conference on Environment and
Development (UNCED) in 1992. It entered into force on 21 March 1994: 90 days after the
fiftieth ratification, in accordance with article 23.1 UNFCCC.33
The UNFCCC is, as the name says, a framework treaty. This implies that from a formal point
of view, the UNFCCC is legally binding, it indicates the overall objective and the guiding
principles and it installs the procedures and institutions to implement the convention. To the
29
Resolution 43/53 GA, supra note 7; Resolution 44/207 of the United Nations General Assembly (22
December 1989), UN Doc. A/RES/44/207 (1989): Both resolutions were adopted without a vote,
implying they obtained widespread and strong support.
30
IPCC, First Assessment Report, Cambridge, Cambridge University Press, 1990.
31
Its mandate was to prepare an adequate framework convention on climate change: IISD, “Summary
of the first Conference of the Parties for the Framework Convention on Climate Change: 28 March- 7
April 1995”, ENB 1995, http://www.iisd.ca/download/pdf/enb1221e.pdf, (1) 1.
32
Resolution 45/212 of the United Nations General Assembly (21 December 1990), UN Doc. A/Res.
45/212 (1990), §1.
33
UNFCCC,
Status
of
Ratification
of
the
Convention,
http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php.
6
contrary, the normative content of the convention is relatively weak.34 When states decide to
become a Party to an initial framework treaty, they still retain much of “their sovereign
elbowroom”, as such treaty does not contain strict legal obligations.35 Framework treaties are
often36 followed by Protocols, ensuing more stringent obligations.37 This less demanding form
of a framework convention was presumably chosen since at the time, Parties were unable to
agree on concrete and binding emission limitations.38 Nevertheless, although the UNFCCC is
a ‘framework’ convention, it does contain elements of a substantive agreement as well.39
Currently, with 194 State parties and one regional economic organization, the European Union
(EU), the Convention enjoys a universal membership.40
A.2 Objective and principles41
In most treaties, the intention of the Parties and the general principles are included in the
preamble. The negotiating Parties to the UNFCCC instead decided to place them in the
34
L. RAJAMANI, Differential Treatment in International Environmental Law, Oxford, Oxford
University Press, 2OO6 (hereinafter: L. RAJAMANI, Differential Treatment in International
Environmental Law), 181; J. WERKSMAN and K. HERBERTSON, “The Legal Character of National
Actions and Commitments in a Copenhagen Agreement: Options and Implications”, World Resources
Institute 2009, http://www.wri.org/publication/legal-character-of-namas-in-a-copenhagen-agreement,
(1) (hereinafter: J. WERKSMAN, K. HERBERTSON, The Legal Character of National Actions), 10.
35
J. BRUNNÉE, “COPing with Consent: Law-Making under Multilateral Environmental Agreements”,
LJIL 2002, vol. 15, (1) (hereinafter: J. BRUNNÉE, COPing with Consent), 7.
36
Also in this case, see infra: 2.C The Kyoto Protocol.
37
The “framework-protocol” model has evolved into the most common approach for Multilateral
Environmental Agreements (hereinafter: MEA): J. BRUNNÉE, COPing with Consent, supra note 34, 7;
J. BRUNNÉE, “The United States and International Environmental Law: Living with an Elephant”, EJIL
2004, vol. 15, (617) (hereinafter: J. BRUNNÉE, Living with an Elephant), 637.
38
H. E. OTT, Climate Policy Post-2012, supra note 18,14; R. FALKNER, H. STEPHAN and J. VOGLER,
“International Climate Policy after Copenhagen: Towards a ‘Building Blocks’ Approach”, Global
Policy 2010, vol. 1, (252) (hereinafter: R. FALKNER et al., Towards a ‘Building Blocks’ Approach),
254.
39
See infra, 2.A.3 Commitments; D. BODANSKY, “The UN Framework Convention on Climate
Change: A Commentary”, Yale J. Int’l L. 1993, vol. 18, (451) (hereinafter: D. BODANSKY, The
UNFCCC: A Commentary), 496; R. GORDON, “Climate change and the poorest nations: further
reflections on global inequality”, University of Colorado Law Review 2007, vol. 78, (1559)
(hereinafter: R. GORDON, Climate change and the poorest nations), 1583.
40
UNFCCC,
Status
of
Ratification
of
the
Convention,
http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php (providing a
list of signatories and ratification of the Convention as of 2 April 2011).
41
Although the UNFCCC contains several principles (such as sustainable development, sustainable
economic growth, equity), only the principle of common but differentiated responsibilities and the
precautionary principle will be examined in more detail as they are of particular relevance for the post2012 problem.
7
operative part of the Convention. This indicates that some states sought to emphasize the
importance of these provisions and to grant them a higher legal status.42
A.2.1 Objective
The ultimate objective of the UNFCCC is to achieve “stabilization of greenhouse gas
concentrations in the atmosphere at a level that would prevent dangerous anthropogenic
interference with the climate system” (UNFCCC, article 2, emphasis added).
However, it was not specified what constituted “dangerous anthropogenic interference with the
climate system”.43 The outcome of the negotiations already reflects several differing views,
concerns and interests.44 Moreover, the lack of scientific consensus at the time made it difficult
to estimate this level more precisely. Even now that scientists can determine what the likely
effects of different greenhouse gas levels are; whether these effects are “dangerous” is actually
a value judgement, and thus a policy question.45 Currently, the common opinion is that global
temperature increases should not surpass a two-degrees Celsius threshold above pre-industrial
levels, in order to respect the Convention’s objective.46
42
D. BODANSKY, The UNFCCC: A Commentary, supra note 39, 497.
J. E. ALDY and R. N. STAVINS, Architectures for agreement: addressing global climate change in the
post-Kyoto world, Cambridge, Cambridge University Press, 2007 (hereinafter: J. E. ALDY, R. N.
STAVINS, Architectures for agreement), 6; D. JAMIESON, “The Post-Kyoto Climate: A Gloomy
Forecast”, GIELR 2008, vol. 20, (537) 541; A.M. HALVORSSEN, Global Response to Climate Change,
supra note 21, 854.
44
J. DE MULDER and F. MAES, “Verhandelbare emissierechten in het klimaatbeleid : een inventarisatie
van de juridische aspecten”, Universiteit Gent 2006, http://www.maritieminstituut.be/uploads/b265.pdf,
(1) (hereinafter: J. DE MULDER, F. MAES, Verhandelbare emissierechten in het klimaatbeleid), 26.
45
IPCC, Summary Policymakers, supra note 3, 18; D. BODANSKY, “The Legitimacy of International
Governance: A Coming Challenge for International Environmental Law?”, AJIL 1999, vol. 93, (596)
(hereinafter: D. BODANSKY, The Legitimacy of International Governance), 621.
46
Communication from the Commission to the Council, the European Parliament, The European
Economic and Social Committee and the Committee of the Regions- Limiting Global Climate Change
to
2
degrees
Celsius:
The
way
ahead
for
2020
and
beyond,
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52007DC0002:EN:NOT; G8 Chair’s Summary,
L’Aquila Summit 2009, http://www.g8.utoronto.ca/summit/2009laquila/2009-summary.html: “In the
G8 session, Leaders recognised the scientific view on the need to keep global temperature rise below
two degrees Celsius above pre- industrial levels”; The Major Economies Forum on Energy and
Climate,
Declaration
of
the
Leaders,
L’Aquila
Summit
2009,
http://www.docstoc.com/docs/44009263/Declaration-by-the-Leaders-of-the-Major-Economies-Forumon-Energy-and-Climate: “We recognize the scientific view that the increase in global average
temperature above pre-industrial levels ought not to exceed 2 degrees C”; For a deeper reflection, See
infra: 4.C.3.1, Content of the Copenhagen accord.
43
8
The legal status of this ‘ultimate objective’ has in former times been subject to debate. Starting
point in defining the legal status is the Vienna Convention on the Law of Treaties47. This
Convention contains rules regarding the “object and purpose” of treaties. Particularly, Parties
have a duty not to “defeat the object and purpose of a treaty”48 and a “treaty shall be
interpreted (…) in the light of its object and purpose”49. Whether the stabilization of GHG
concentrations qualified as the “object and purpose” in this sense was questioned. The adding
of the word “ultimate” may have been an attempt to prevent the Convention’s objective from
being equated with “object and purpose”.50 Notwithstanding the minor textual differences, the
majority of authors now threats article 2 UNFCCC exactly as the Convention’s “object and
purpose”.51
A.2.2 The principle of common but differentiated responsibilities (CDR)
Parties should pursue the Convention’s objective, “in accordance with their common but
differentiated responsibilities and respective capabilities”. Accordingly, developed country
Parties should take the lead in combating climate change and the adverse effects thereof
(UNFCCC, article 3.1).
Two features characterize States’ responsibilities. First, the
responsibilities are common; and second, they are differentiated.
That responsibilities are common is easy to understand. 1 ton of GHGs emitted in the United
States (US) has the same ecological effect as 1 ton of GHGs emitted in Tanzania. This
pollution cannot be confined to a geographic region; it instead poses a global environmental
47
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331; reprinted in 8 I.L.M.
679 (hereinafter: VCLT).
48
VCLT, supra note 47, article 18.1.
49
VCLT, supra note 47, article 31.1.
50
D. BODANSKY, The UNFCCC: A Commentary, supra note 39, 500; Y. KAMEYAMA and I. KUBOTA,
“What are the “objectives” meant to be? A comparative study of multilateral environmental agreements
on articles on objectives, with primary attention on the United Nations Framework Convention on
Climate Change”, Environmental Economics and Policy Studies 2010, vol. 11, (1) 13.
51
L. RAJAMANI, Differential Treatment in International Environmental Law, supra note 34, 162; T.
HONKONEN, “The Principle of Common But Differentiated Responsibility in Post-2012 Climate
Negotiations”, RECIEL 2009, (257) (hereinafter: T. HONKONEN, The Principle of Common But
Differentiated Responsibility), 267; A. M. HALVORSSEN, “Common, but Differentiated Commitments
in the Future Climate Change Regime- Amending the Kyoto Protocol to include Annex C and the
Annex C Mitigation Fund”, CJIELP 2007, vol. 2, (247) (hereinafter: A. M. HALVORSSEN, Common,
but Differentiated Commitments in the Future Climate Change Regime), 255.
9
problem. No state has the capability to prevent global climate change on its own, and no state
is able to isolate itself from it; all countries will have to cooperate to confine the problem.
More troublesome, responsibilities are also differentiated. This differentiation is based on two
criteria: countries’ contribution to GHG emissions and the resources they posses to take
remedial measures.52 When dealing with differentiated responsibilities, one notices that certain
elements are generally accepted, while others remain highly debated. Consensus exists to the
point that developing nations have contributed to a small degree to the emission of GHG and
developed nations to a very high degree; and consequently, that their respective responsibilities
should reflect this historical responsibility. Additionally, the majority agrees that developed
nations possess more recourses to take remedial measures.53
Contrarily, the criteria for differentiation between individual state responsibilities have become
the subject of discussion.54 Most developed countries prefer an evolving, flexible
categorization of Parties to enable that differences between developing countries can be taken
into account when assigning obligations. To the contrary, most developing countries oppose
any form of differentiation between them, as this would disrupt the burden sharing architecture
of the UNFCCC and Kyoto Protocol55, and threaten their negotiating power.56
52
L. RAJAMANI, Differential Treatment in International Environmental Law, supra note 34, 130; Y.
MATSUI, “Some Aspects of the Principle of “Common but Differentiated Responsibilities””,
International Environmental Agreements: Politics, Law and Economics 2002, vol. 2, (151) (hereinafter:
Y. MATSUI, “Some Aspects of the Principle of “Common but Differentiated Responsibilities), 154.
53
J. BRUNNÉE, “Climate change, global environmental justice and international environmental law” in
J. EBBESSON and P. OKOWA (eds.), Environmental Law and Justice in Context, Cambridge, Cambridge
University Press, 2009, (316-325); E. LOUKA, International Environmental Law- Fairness,
Effectiveness, and World Order, Cambridge, Cambridge University Press, 2006, 54; J. BRUNNÉE, From
Bali to Copenhagen, supra note 21, 93; K. W. DANISH, “An Overview of the International Regime
Addressing Climate Change”, SDLP 2007, vol. 7, (10) 10; A. M. HALVORSSEN, Common, but
Differentiated Commitments in the Future Climate Change Regime, supra note 51, 254-255; Y.
MATSUI, “Some Aspects of the Principle of “Common but Differentiated Responsibilities, supra note
52, 154; T. E. WIRTH, A Way forward on Climate Change, supra note 27, 317.
54
This differentiation could be made based upon current emissions of countries, the per capita
emissions, the historical responsibility for emissions,… :J. BRUNNÉE, From Bali to Copenhagen, supra
note 21, 93.
55
Kyoto Protocol to the United Nations Framework Convention on Climate Change, December 10,
1997, 37 I.L.M. 22 (hereinafter: Kyoto Protocol); for detailed information see infra: 2.C: The Kyoto
Protocol.
56
L. RAJAMANI, “Differentiation in the Post-2012 Climate Regime”, Pol’y Q. 2008, vol. 4, (48)
(hereinafter: L. RAJAMANI, Differentiation in the Post-2012 Climate Regime), 48-49.
10
Notwithstanding the considerable importance of the principle in the climate change regime,
there are limits to its scope. Two limitations are identified.
Firstly, the CDR principle only applies for a limited time period, necessary for developing
countries to reach the same level of economic growth as developed countries. Once this
discrepancy in economic standard is cleared, the differential treatment should cease to apply.57
On this point, RAJAMANI provides some sharp and justified commentary. If the CDR principle
is included in the conviction that the responsibilities ought to be divided based on the different
situations of countries in order to be ‘just’, one must admit that the considerable differences
within the group of developing nations should also be taken into account. Currently, the
nations within the Group of 77 (G-77)58 are considered to be developing nations. But this
“broad brush approach” neglects fundamental differences between them. Indeed, it is hard to
see how countries as Singapore and Qatar, who are both classified as high-income country by
the World Bank and as very high human development country by the UN Development
Program,59 can be qualified as developing countries under the climate regime, just as for
example Ethiopia and Madagascar, classified as low-income and low human development
countries,60 only because of their membership of the G-77.61
The second limitation to CDR principle implies that its application should not be incompatible
with the object and purpose of the UNFCCC. As noted, a treaty must be interpreted in the light
of the object and purpose of it.62 If the implementation of the CDR principle impedes the
Convention’s objective from being realized, it has gone beyond the limits of the treaty.63
57
A. M. HALVORSSEN, Global Response to Climate Change, supra note 21, 849; A. M. HALVORSSEN,
Common, but Differentiated Commitments in the Future Climate Change Regime, supra note 51, 255.
58
See infra 2.B: Negotiating Blocks.
59
The
World
Bank,
Gross
national
income
per
capita,
http://data.worldbank.org/indicator/NY.GNP.PCAP.CD; United Nations Development Program,
Human Development Index, 2010 Report, http://hdr.undp.org/en/statistics/hdi/.
60
Ibid.
61
L. RAJAMANI, Differential Treatment in International Environmental Law, supra note 34, 164-173.
62
VCLT, supra note 47, article 31.1.
63
L. RAJAMANI, Differential Treatment in International Environmental Law, supra note 34, 162; A. M.
HALVORSSEN, Global Response to Climate Change, supra note 21, 850; A. M. HALVORSSEN,
Common, but Differentiated Commitments in the Future Climate Change Regime, supra note 51, 255.
11
Within the UNFCCC, the CDR principle manifests through the division of Parties into
different groups, in order to take on different responsibilities64: Annex I countries (developed
countries and countries undergoing a transition to a market economy), Annex II countries (the
Annex I countries with financial obligations, i.c. OECD countries) and non-Annex I countries
(developing countries). The text of the UNFCCC does not mention the aforementioned
limitations to the CDR principle. The absence of limitations in the text leaves room for
discussions. Another example of application of CDR that could provide guidance on this point
is the Montreal Protocol65: Developing countries are allowed a delay in compliance with the
terms of the Protocol for ten years and receive financial support. Nonetheless, the substantive
obligations in the Montreal Protocol are identical for both developed and developing nations. 66
The principle of common but differentiated responsibilities is not precisely defined67 and
contains no legal obligation in itself. Nonetheless, it is stated to be “of sufficient legal weight
to form the legal and philosophical basis for the interpretation of existing obligations and the
elaboration of future international legal obligations within the context of existing instruments
in the on-going regime-building process.”68 The subsequent Protocol to the UNFCCC clearly
follows this principle, since it only imposes obligations on developed nations.69
A.2.3 The precautionary principle
Article 3.3 UNFCCC contains the precautionary principle, according to which parties should
“take precautionary measures to anticipate, prevent or minimize the causes of climate change
and mitigate its adverse effects.” Additionally, “where there are threats of serious or
64
D. BUSHEY and S. JINNAH, “Evolving Responsibility? The Principle of Common but Differentiated
Responsibility in the UNFCCC”, BJIL Publicist 2010, vol. 6, (1) 1; P. K. WATERMAN, “From Kyoto to
ANWR: Critiquing the Bush Administration’s Withdrawal From the Kyoto Protocol to the Framework
Convention on Climate Change”, TLCP 2003, vol. 13, (749) (hereinafter: P.K. WATERMAN, From
Kyoto to ANWR), 756.
65
Montreal Protocol on Substances that Deplete the Ozone Layer, September 16, 1987, 1513 U.N.T.S.
323 (hereinafter: Montreal Protocol).
66
Montreal Protocol, supra note 65, article 5: Special situation of developing countries.
67
C. D. STONE, “Common but Differentiated Responsibilities in International Law”, AJIL 2004, vol.
98, (276) 277-301; J. DE MULDER, F. MAES, Verhandelbare emissierechten in het klimaatbeleid, supra
note 44, 27.
68
L. RAJAMANI, “The Principle of Common but Differentiated Responsibility and the Balance of
Commitments under the Climate Regime”, RECIEL 2000, vol. 9, (120) 124.
69
See infra, 2.C: The Kyoto Protocol.
12
irreversible damage, lack of full scientific certainty should not be used as a reason for
postponing such measures” (UNFCCC, article 3.3).70
The measures taken by Parties are affected by the precautionary principle in two ways; in
timing as well as in substance. Parties should anticipate, thus take measures before actually
experiencing the harm and these measures should be adopted with a margin of error, thus
balance should tip in favour of more severe measures in case it is impossible to assess the
environmental risk with full certainty.71
This principle of precaution has an important role in the climate change regime, as the latter is
actually founded on the premise of precaution.72 It eventually supports the arguments of
Parties who are in favour of strong international action.73 Nevertheless, the use of the word
‘should’, instead of the mandatory language ‘shall’, indicates the principle is no ‘hard’
principle.74
A.3 Commitments
As stated supra, the UNFCCC contains different commitments for the three respective groups.
Certain general commitments are directed to all State Parties, both developed and developing
(UNFCCC, article 4.1, 5 and 6). These commitments are qualitative, not quantitative in
nature75 and include among others: the development and publication of national inventories of
anthropogenic emissions; formulation and implementation of programs to adapt to climate
70
P. K. WATERMAN, From Kyoto to ANWR, supra note 64, 756; J. CAMERON, J. ABOUCHAR, “The
Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global
Environment”, Boston College International and Comparative Law Review 1991, vol. 14, (1) 21.
71
D. BODANSKY, “The Precautionary Principle and International Law, Interpreting the Precautionary
Principle”, http://www.libraryindex.com/pages/3381/Precautionary-Principle.html; C. SCHWARTE,
International climate change litigation, supra note 9, 10-11; A. TROUWBORST, Precautionary Rights
and Duties of States, Leiden, Martinus Nijhoff Publishers, 2006, 29.
72
S. ANDRESEN, L. WALLOE and K. ROSENDAL, “The Precautionary Principle: Knowledge Counts but
Power Decides?” in R. COONEY and B. DICKSON, Biodiversity and the Precautionary Principle: Risk
and Uncertainty in Conservation and Sustainable Use, London, Earthscan, 2005, (39) 45;
INTERNATIONAL LAW ASSOCIATION (ed.), “Legal Principles relating to Climate Change”, The Hague
Conference (2010), (1) (hereinafter: ILA, Legal Principles), 23.
73
ILA, Legal Principles, supra note 72, 23.
74
D. BODANSKY, “Deconstructing the Precautionary Principle” in D. D. CARON and H.N. SCHEIBER
(eds.), Bringing New Law to Ocean Waters, Leiden, Martinus Nijfhoff Publishers, 2004, (381) 382; A.
TROUWBORST, Evolution and Status of the Precautionary Principle in International Law, The Hague,
Kluwer Academic Publishers, 2002, 73.
75
D. BODANSKY, The UNFCCC: A Commentary, supra note 39, 505.
13
change; the promotion of sustainable development and the promotion and cooperation in
exchange of information (UNFCCC, article 4.1).
The UNFCCC also stipulates that the extent to which developing country Parties will
effectively carry out these commitments will depend on the effective implementation by
developed country Parties of their commitments under the Convention related to financial
resources and transfer of technology (UNFCCC, article 4.7). The level of assistance from
developed countries is thus a pivotal factor in the implementation of these general
commitments. This arrangement constitutes a compromise between developed countries,
which preferred the same methodology for the preparation of GHG inventories to be used by
all countries; and developing countries, which argued that these methodologies were not
appropriate for them. Parties agreed that developing countries would engage in reporting, with
the precondition of developed countries paying the full costs. 76
The UNFCCC installs some additional duties for Annex I Parties. The most notable
commitment for Annex I Parties is the adoption of national policies and corresponding
measures on the mitigation of climate change. This mitigation should take place by limiting the
anthropogenic emissions of greenhouse gases and protecting and enhancing greenhouse gas
sinks and reservoirs (UNFCCC, article 4.2 (a)). These policies were purported to demonstrate
that developed countries take the lead in modifying longer-term trends in anthropogenic
emissions, as Parties consequently recognized that returning by the end of the decade (2000) to
earlier levels would contribute to such modification.
This commitment is followed by the information requirements, which are also stricter for
Annex I Parties: initial reports must be communicated within 6 months of the entry into force
of the Convention, and periodically thereafter, “with the aim of” returning emissions
individually or jointly to their 1990 levels (UNFCCC, article 4.2 (b)).
The combination of these two provisions (article 4.2 (a) and (b)) made some parties conclude
that the UNFCCC demanded Annex I Parties to reduce their emissions by the year 2000 to the
1990 levels. However, since this article is drafted rather vaguely, without a clear connection
76
D. BODANSKY, The UNFCCC: A Commentary, supra note 39, 509.
14
between the (a) and (b) provisions, it is doubtful whether the UNFCCC contains such explicit
enforceable obligation.77 Nevertheless, this “soft” commitment has been met.78
Finally, Annex II Parties have some additional commitments of their own. It are only these
parties that have committed themselves to provide new and additional financial resources to
meet the agreed full costs incurred by developing country Parties in complying with their
obligations under article 4.1 and 12.1 (UNFCCC, article 4.3). Annex II parties shall also
financially assist the developing countries that are particularly vulnerable to the adverse effects
of climate change with regards to adaptation to those adverse effects (UNFCCC, article 4.4).
And at last, they shall promote, facilitate and finance, as appropriate, the transfer of, or access
to, environmentally sound technologies and know-how to other Parties, to enable them to
implement the provisions of the Convention (UNFCCC, article 4.5).
While carrying out the commitments under Article 4, Parties must give full consideration to
what actions are necessary under the Convention, including actions related to funding,
insurance and the transfer of technology, to meet the specific needs and concerns of
developing country Parties. Within these developing countries, certain countries deserve
special attention, such as: small island countries, countries with low-lying coastal areas, with
areas liable to drought and desertification, countries whose economies are highly dependent on
income generated from fossil fuels, and finally, the least developed countries (UNFCCC,
article 4.8, 4.9).
A.4 Institutional framework79
The Conference of the Parties (COP) is the supreme body of the UNFCCC. It has a mandate to
regularly review the implementation of the Convention and the related legal instruments, and
to make, within its mandate, the decisions necessary to promote the effective implementation
77
E. LOUKA, International Environmental Law- Fairness, Effectiveness, and World Order, Cambridge
University Press, 2006, 362; J. DE MULDER, F. MAES, Verhandelbare emissierechten in het
klimaatbeleid, supra note 44, p. 27; L. RAJAMANI, Differential Treatment in International
Environmental Law, supra note 34, 192.
78
UNFCCC
(ed.),
The
First
Ten
Years,
Bonn,
2004,
http://unfccc.int/resource/docs/publications/first_ten_years_en.pdf.
79
For more detailed information regarding the legal bases of the COP to take decisions, and the legal
value of these decisions, see infra 5.B.4.2: Legal value of COP decisions.
15
of the Convention (UNFCCC, article 7.2). The Convention also contains a catch- all provision,
assigning the COP the power to “exercise such other functions as are required for the
achievement of the objective of the Convention” (UNFCCC, article 7.2 (m)). The COP
assembles annually, in the end of the year.
The Rules of Procedure of the COP should have been adopted at the first COP session
(UNFCCC, article 7.3). However, instead of formally adopting them, the Conference merely
stated: “the draft rules of procedures are at present being applied in the COP and its subsidiary
bodies, with the exception of draft rule 4280”.81
In the absence of adoption of specific voting rules –apart from those in article 18 UNFCCC82consensus is used as the default option.83 A decision is adopted by consensus in case of
absence of formal objection to the proposed decision,84 generally without organizing an
effective voting- procedure. If a Party decides to acquiesce in the adoption of a decision, it can
80
Draft rule 42 contains two alternatives on the voting rules. Both options include a two-thirds majority
vote under certain circumstances.
81
UNFCCC, Organizational matters: Adoption of the Rules of Procedure, Note by the secretariat,
FCCC/CP/1996/2, (22 May 1996) §2; During subsequent COPs, Parties noted the lack of progress on
draft rule 42 and agreed to apply the draft rules of procedure, with the exception of draft rule 42: IISD,
“Summary of the Sixth Conference of the Parties to the Framework Convention on Climate Change”,
ENB 2000, http://www.iisd.ca/download/pdf/enb12163e.pdf, (1) (hereinafter: ENB Sixth Conference),
3; IISD, “Summary of the Eleventh Conference of the Parties to the UN Framework Convention on
Climate Change and First Conference of the Parties serving as the Meeting of the Parties to the Kyoto
Protocol”, ENB 2005, http://www.iisd.ca/download/pdf/enb12291e.pdf, (1) (hereinafter: ENB Eleventh
Conference), 3; IISD, “Summary of the Copenhagen Climate Change Conference”, ENB 2009,
http://www.iisd.ca/download/pdf/enb12459e.pdf, (1) (hereinafter: ENB Copenhagen Conference), 3;
IISD,
“Summary
of
the
Cancun
Climate
Change
Conference”,
ENB
2010,
http://www.iisd.ca/download/pdf/enb12498e.pdf, (1) (hereinafter: ENB Cancun Conference), 3.
82
This article stipulates that each Party to the Convention shall have one vote. The second paragraph
contains the exception to this rule; A regional economic integration organization exercises its right to
vote with a number of votes equal to the number of member States Party to the UNFCCC. This applies
only in cases where the member states do not exercise their right to vote.
83
VCLT, supra note 47, article 11; J. DEPLEDGE, “The Opposite of Learning: Ossification in the
Climate Change Regime”, GEP 2006, vol. 6, (1) (hereinafter: J. DEPLEDGE, The Opposite of Learning),
11.
84
R. CHURCHILL and G. ULFSTEIN, “Autonomous Institutional Arrangements in Multilateral
Environmental Agreements: A Little-noticed Phenomenon in International Law”, AJIL 2000, vol. 94,
(623) (hereinafter: R. CHURCHILL, G. ULFSTEIN, Autonomous Institutional Arrangements), 636; J.
DEPLEDGE, The Opposite of Learning, supra note 83, 11; J. DEPLEDGE, The Organization of Global
Negotiations: Constructing the Climate Change Regime, London, Earthscan, 2005 (hereinafter: J.
DEPLEDGE, The Organization of Global Negotiations), 92; M. FITZMAURICE, “Consent to Be BoundAnything New under the Sun?”, Nordic J. Int’l L. 2005, vol. 74, (483) (hereinafter: M. FITZMAURICE,
Consent to Be Bound), 487.
16
request that his objections are recorded in the report of the meeting; the decision can then
nevertheless be adopted by consensus.
The President of the COP determines whether consensus exists in the light of the views
expressed by the Parties and in his or her assessment of ‘the sense of the meeting’.85 The
President thus has significant discretion to determine whether a party is formally objecting,
and whether or not the decision can be adopted.86 The recent adoption of the Cancun
Agreements proves that ambiguity exists regarding the concept of consensus.87 Additionally,
more and more observers argue that the need to obtain the consent of all Parties, significantly
slows down the process of the climate change regime88, which is particularly evident when
negotiating the post-2012 regime. Despite this justified observation, the consent requirement
protects the sovereignty of states. Therefore, it “provides a basis for the legitimacy of
international norms”89 and will likely remain the principle in the years to come.90
Apart from the Conference of the Parties, three other bodies were established by the UNFCCC.
The first, the Secretariat is a procedural body. It is mandated to make arrangements for the
sessions of the COP, compile and transmit the COP reports, facilitate assistance to the Parties
and to ensure coordination with other relevant international bodies (UNFCCC, article 8).
85
UNITED NATIONS INSTITUTE FOR TRAINING AND RESEARCH (ed.), Multilateral Conferences and
DiplomacyA
Glossary
of
Terms
for
UN
Delegates,
Geneva,
2005,
http://www.unitar.org/mdp/sites/unitar.org.mdp/files/Glossary_E.pdf, (1) 38; J. DEPLEDGE, The
Organization of Global Negotiations, supra note 84, 91; L. MASSAI, “The Long Way to the
Copenhagen Accord: Climate Change Negotiations in 2009”, RECIEL 2010, vol. 1, (104) (hereinafter:
L. MASSAI, The Long Way to the Copenhagen Accord), 120.
86
J. DEPLEDGE, The Organization of Global Negotiations, supra note 84, 92.
87
See infra, 4.D.3: The Cancun Agreements. These Agreements were adopted as COP decisions,
although Bolivia had formally objected their adoption.
88
According to some countries, agreement by consensus is based on “the lowest common denominator”
and “gravely negligent” to the seriousness of the problem: ENB Copenhagen Conference, supra note
81, 3; D. BODANSKY, The Legitimacy of International Governance, supra note 45, 607; J. BRUNNÉE,
COPing with Consent, supra note 7; J. DE MULDER, F. MAES, Verhandelbare emissierechten in het
klimaatbeleid, supra note 44, 29; J. DREXHAGE and D. MURPHY, “Copenhagen: A memorable time for
all the wrong reasons?”, IISD 2009, (1) 1; R. FALKNER et al., Towards a ‘Building Blocks’ Approach,
supra note 38, 258.
89
D. BODANSKY, The Art and Craft of International Environmental Law, London, Harvard University
Press, 2010 (hereinafter: D. BODANSKY, The Art and Craft of International Environmental Law), 103.
90
As BRUNNÉE argues: “ Treaty adaptation will be meaningful only if majority requirements are set to
ensure that large number of parties, including at least some of the key players, are on board. Therefore,
some observers suggest that consensus decision-making ultimately is one of the most efficient way to
bring about a text that will have key states’ buy-in”: J. BRUNNÉE, COPing with consent, supra note 34,
9-10.
17
The COP determined that “the Convention secretariat shall be institutionally linked to the
United Nations, while not being fully integrated in the work programme and management
structure of any particular department or programme”.91 The Secretariat thus relies for the
substantive and procedural matters solely on the instructions of the COP.92 Contrarily, the
United Nations as host organization, does have the power to appoint and terminate staff. The
UN Secretary- General for example “appoints, after consultation with the Conference of the
Parties through its Bureau, the head of the Convention secretariat, with the title of Executive
Secretary”.93
Second, the Subsidiary Body for Scientific and Technological Advice was established to
provide the COP and other subsidiary bodies with information and advice on scientific and
technological matters (including assessments on the state of scientific knowledge, innovative
technologies etcetera) (UNFCCC, article 9).
Third, the Subsidiary Body for Implementation was set up, in order to assist the COP in the
assessment and review of the effective implementation of the UNFCCC. This body must
consider the information in accordance with article 12 and provide assistance to the COP in the
preparation and implementation of its decision (UNFCCC, article 10).
B. LIKE-MINDED PARTIES FOUND EACH OTHER: NEGOTIATING
BLOCKS
94
Within the climate change negotiations, parties can be identified in different “negotiating
blocks” or party groupings. There are three large groupings; the Umbrella Group (UG), the EU
91
UNFCCC, Decision 14/CP.1, Institutional Linkage of the Convention Secretariat to the United
Nations, in Report of the Conference of the Parties on its first session, held at Berlin from 28 March to
7 April 1995, Addendum Part Two: Action taken by the Conference of the Parties at its first session,
FCCC/CP/1995/7/Add.1, (6 June 1995) (hereinafter: Decision 14/CP.1), 42.
92
R. CHURCHILL, G. ULFSTEIN, Autonomous Institutional Arrangements, supra note 84, 630-631.
93
Decision 14/CP.1, supra note 91, 42, §7.
94
In case no specific mention is made, the information in this section is obtained from: UNFCCC,
Negotiating
Groups,
http://unfccc.int/parties_and_observers/parties/negotiating_groups/items/2714.php.
18
and the Group of 77 (G-77)95. Within the latter, two smaller groups, the Alliance of Small
Island States (AOSIS) and the Group of Least Developed Countries (LDCs) take a special
position.
First, the UG: this group, which emerged after the adoption of the Kyoto Protocol96, consists of
non-EU developed countries. The UG replaced JUSCANZ, a former negotiating group which
included Japan, US, Switzerland, Canada, Australia, Norway and New Zealand.97 The same
countries, except Switzerland and including Russia, set up the UG.98 Since this is a loose
coalition, there is no formal list of members. Nonetheless, the UG is usually made up of the
US, Australia, Canada, Japan, the Russian Federation, Iceland, New Zealand, Norway, and
Ukraine. The national circumstances of these countries vary strongly. For instance, Norway’s
emissions per capita and per unit of Gross Domestic Product are significantly lower than those
of the US.99 Moreover, Norway is a strong proponent of the Kyoto Protocol, while other
members of the group either did not sign it or rejected its continuation.100 As this group
consists of members with diverging view points, it occurs often that parties adapt a stance
differing from the stance of the UG.
Second, the EU: this group is a regional economic integration organization, and is itself a Party
to the UNFCCC. Based on article 4 of the Kyoto Protocol, the EU members have agreed to
fulfil their commitments under article 3 jointly. This so-called “bubble” allows for a
redistribution of reduction commitments between its members; nonetheless, in case of failure
to attain the required reductions, each party regains responsibility for its own individual target
(Kyoto Protocol, article 4.5).
101
The EU members usually agree on common negotiating
95
The Group is often referred to as ‘G-77 and China’. Nonetheless, China is a regular member of the
G-77: The Group of 77 at the United Nations, About the Group of 77, Member States of the Group of
77, http://www.g77.org/doc/index.html.
96
See infra, 2.C The Kyoto Protocol.
97
UNFCCC (ed.), United Nations Framework Convention on Climate Change Handbook, Bonn, 2006,
http://iklim.cob.gov.tr/iklim/Files/eKutuphane/8-UNFCCC-elkitabi.ingilizce.pdf, 9.
98
J. WERKSMAN, “The Negotiation of a Kyoto Compliance System” in J. HOVI, O. S. STOKKE and G.
ULFSTEIN, Implementing the Climate Regime: International Enforcement, London, Earthscan, 2005,
(17) 20.
99
J. DEPLEDGE, The Organization of Global Negotiations, supra note 84, 31.
100
M. KHOR, “What to Expect in Cancun: Some Key Issues”, TWN Cancun News Update (29
November 2010), http://www.twnside.org.sg/title2/climate/news/cancun01/cancun.news.01.pdf.
101
L. MASSAI, The Kyoto Protocol in the EU, The Hague, T.M.C. Asser Press, 2011, 96.
19
positions.102 The EU is seen as the fiercest defender of strong international action against
climate change among the developed nations.103
Third, the G-77104: this is an intergovernmental organization of developing countries of the
South who jointly pronounce and promote their collective economic interests. By acting
jointly, they aim to enhance their negotiating power. The group currently consists of more than
130 members, notwithstanding the name, that was retained because of its historic
importance.105 The G-77 is not always able to speak with one voice, as it is a diverse group
with differing interests in climate change issues. Two groups often intervene in debate for
itself, AOSIS and the LDCs.
AOSIS consists of 43106 low-lying and small island countries, that are particularly vulnerable
to sea-level rise. Because these countries face the same treat that climate change poses to their
survival, they often adopt a common position in negotiations. Nonetheless, tensions can be
noted nowadays between AOSIS members. Some members follow the traditional G-77- stance,
claiming that only Annex I Parties should take on reduction obligations, while others claim
that large developing countries must also start taking reduction measures.107 The latter point of
view, defended most notably by Tuvalu, is definitely more in accordance with the AOSIS
proposals for significant emission reductions globally.108
102
C. F. PARKER and C. KARLSSON, “Climate Change and the European Union’s Leadership Moment:
An Inconvenient Truth?”, JCMS 2010, vol. 48, (923) (hereinafter: C. F. PARKER, C. KARLSSON,
Climate Change and the European Union’s Leadership Moment), 934.
103
S. AFIONIS, “The European Union as a negotiator in the international climate change regime”,
International Environmental Agreements: Politics, Law and Economics 2010, (1) 2; F. YAMIN, “The
role of the EU in climate negotiations” in J. GUPTA and M. GRUBB (eds.), Climate change and
European Leadership: A sustainable role for Europe?, Dordrecht, Kluwer, 2000, (47) 47; J. GUPTA and
L. RINGIUS, “The EU’s climate leadership: Reconciling ambition and reality”, International
Environmental Agreements: Politics, Law and Economics 2001, (281) 294.
104
The G- 77 was established in 1964 by 77 developing countries, by signing the “Joint Declaration of
the Seventy-Seven Countries” in Geneva: The Group of 77 at the United Nations, About the Group of
77, http://www.g77.org/doc/index.html.
105
Ibid.
106
39 Member States and Four observers: AOSIS, Members and Observers: http://aosis.info/membersand-observers/ (consultation on 2 July 2011).
107
J. BARNETT, J. CAMPBELL, Climate Change and Small Island States, supra note 16, 101.
108
Alliance of Small Island States, AOSIS Climate Change Summit, 2009,
http://www.sidsnet.org/aosis/documents/AOSIS%20Summit%20Declaration%20Sept%2021%20FINA
L.pdf.
20
The LDCs, 49 countries defined as such by the United Nations Economic and Social Council,
usually coordinate the group member’s engagement in negotiations about international
trading.109 The Group has become increasingly active in the climate change negotiations. They
together defend their particular interests, for example with regard to vulnerability and
adaptation to climate change.
C. THE 1997 KYOTO PROTOCOL
C.1 History
After the adoption of the UNFCCC, Parties soon realized that the agreed commitments would
not be sufficient to achieve the Convention’s ultimate objective.110 They applied the built-in
revision possibility of article 4.2 (d) UNFCCC which specifies that a review had to be carried
out in the light of the best available scientific information and assessment on climate change
and its impacts, at the first Conference of the Parties. At this first conference, a new round of
negotiations was launched in order to adopt concrete and more stringent commitments.111 The
subsequent COP decision, the “Berlin Mandate” stated that the outcome of negotiations should
be agreement on a “protocol or another legal instrument.112
Already before the actual adoption of such legal instrument, the US’ Senate passed the ByrdHagel Resolution, declaring that the US should not be a signatory to any agreement that would
109
Least Developed Countries, About the LDC Group, http://www.ldcgroups.org/.
UNFCCC, Decision 1/CP.1: The Berlin Mandate: Review of the adequacy of Article 4, paragraph
2(a) and (b), of the Convention, including proposals related to a protocol and decisions on follow-up,
in Report of the Conference of the Parties on its First Session, held at Berlin from 28 March to 7 April
1995, Addendum Part Two: Action Taken by the Conference of the Parties at its First Session,
FCCC/CP/1995/7/Add.1, (6 June 1995) (hereinafter: The Berlin Mandate): Preamble: “Having
reviewed Article 4, paragraph 2(a) and (b), of the United Nations Framework Convention on Climate
Change, and Having concluded that these subparagraphs are not adequate”; S. URBINATI, “Procedures
and Mechanisms Relating to Compliance under the 1997 Kyoto Protocol to the 1992 United Nations
Framework Convention on Climate Change” in T. TREVES (ed.), Non-Compliance Procedures and
Mechanisms and the Effectiveness of International Environmental Agreements, The Hague, T.M.C.
Asser Press, 2009, (63) 64.
111
The Berlin Mandate, supra note 110, 4: “Agrees to begin a process to enable it to take appropriate
action for the period beyond 2000, including the strengthening of the commitments of the Parties
included in Annex I to the Convention (Annex I Parties) in Article 4, paragraph 2(a) and (b)”; Y.
SCHREUDER, The corporate greenhouse: climate change policy in a globalizing world, London, Zed
Books, 2009, (hereinafter: Y. SCHREUDER, The corporate greenhouse), 50.
112
The Berlin Mandate, supra note 110, Preamble.
110
21
mandate new reduction commitments and would result in serious harm to the US economy.113
Despite this negative stance of the US, after two years of negotiating on the basis of the Berlin
Mandate, a Protocol was adopted during the third session of the Conference of the Parties, in
Kyoto, Japan.
In accordance with article 24 of the Kyoto Protocol, the Protocol was open for signature at the
United Nations Headquarters in New York until 15 March 1999. Only parties to the UNFCCC
can ratify, accept, approve or accede to the Protocol. Article 25 provides that the Protocol
would enter into force ninety days after the fulfilment of a double condition. Fifty-five Parties
to the Convention, including Annex I Parties which accounted jointly for at least 55% of the
total carbon dioxide emissions for 1990 of Annex I Parties, should have deposit their
instrument of ratification, acceptance, approval or accession. These conditions were fulfilled in
2005.114
Although the Protocol indicated concrete commitments, it lacked most of the operational rules
and details that were left to decide on during subsequent meetings.115 Therefore, although more
than fifty-five countries had already signed the Protocol, they were waiting for the outcome of
the negotiations of the operational rules before actually ratifying it.116 Negotiations on these
rules and details went on between the UNFCCC Parties. During the COP in The Hague, the
differences between European and US negotiators turned out to be so great, that in the end no
agreement at all was reached. The COP was adjourned, and was resumed in a “bis” session.117
113
Byrd-Hagel Resolution, 105th Congress, 1st Session, S. Res. 98; This expression of hostility before
negotiations are completed is an unusual step: A. DESSLER, E. PARSON, The Science and Politics of
Global Climate Change, supra note 19, 14.
114
After ratification by Russia, see infra p. 24.
115
ENB Sixth Conference, supra note 81, 2; IISD, “Summary of the Seventh Conference of the Parties
to
the
UN
Framework
Convention
on
Climate
Change”,
ENB
2001,
http://www.iisd.ca/download/pdf/enb12189e.pdf, (1) (hereinafter: ENB Seventh Conference), 2; P.
DROST, Multilateral environmental agreements- MEA 2010, The Hague, Eleven International
Publishers, 2010 (hereinafter: P. DROST, Multilateral environmental agreements), 287; B. WITTNEBEN,
W. STERK, H. E. OTT and B. BROUNS, “The Montreal Climate Summit : Starting the Kyoto Business
and Preparing for post-2012”, JEEPL 2006, vol. 2, (90) (hereinafter: B. WITTNEBEN et al., The
Montreal Climate Summit), 93.
116
ENB Seventh Conference, supra note 115, 2.
117
J. BRUNNÉE, COPing with Consent, supra note 34, 3; A. DESSLER, E. PARSON, The Science and
Politics of Global Climate Change, supra note 19, 15; M. GRUBB and F. YAMIN, “Climatic collapse at
the Hague: what happened, why, and where do we go from here?”, International Affairs 2001, vol. 77,
261-276; H. E. OTT, Climate Policy Post-2012, supra note 18, 15.
22
And soon after taking office, George W. Bush declared the US opposition to the Kyoto
Protocol, labelling it “fatally flawed”, as it would not be based upon science, damage the US
economy and exempt developing countries from fully participating.118
Notwithstanding the US opposition, the “Marrakech Accords” were formally adopted during
the seventh COP in 2001.119 They amended and detailed the Protocol in fields of the flexible
mechanisms, reporting and methodologies, land use, land-use change and forestry, and
compliance with the Kyoto Protocol.120 The Accords also address support for developing
countries, especially by means of the establishment of funds.121 Since these decisions
concerned the Kyoto Protocol, they had to be adopted by the Parties to the Protocol.122
Therefore, the COP recommended the Conference of the Parties serving as the meeting of the
Parties to the Kyoto Protocol (CMP)123 to adopt the Marrakech Accords at its first session.124
The aforementioned conditions of article 25 of the Kyoto Protocol were fulfilled in 2005, after
the long-awaited ratification by Russia. After the US had expressed its opposition to the Kyoto
Protocol, ratification by Russia became indispensable for the Protocol to enter into force.
Russia took advantage of this bargaining power; it only ratified the Protocol after the European
118
President Bush Discusses Global Climate Change, Office of the Press Secretary (11 June 2001)
http://georgewbush-whitehouse.archives.gov/news/releases/2001/06/20010611-2.html; S. FREELAND,
The Kyoto Protocol: An Agreement without a future?, supra note 20, 538.
119
The obscene feature of the negotiations on the Kyoto Protocol is that although the US had formally
rejected it, as a member of the UNFCCC, it could still participate and co-decide in shaping the
Protocol’s operational framework; As noted by BRUNNÉE: “Its blunt dismissal of the protocol came
after more than a decade of active involvement in the climate change negotiations, and after
considerable success in shaping many parts of the regime according to American preferences”: J.
BRUNNÉE, Living with an Elephant, supra note 37, 645-646; P. NEWELL, “From global power politics
to responsible collective governance” in TRANSPARENCY INTERNATIONAL (ed.), Global Corruption
Report: Climate Change, London, Earthscan, 2011, (28) 31.
120
UNFCCC, Marrakech Accords, in Report of the Conference of the Parties on its Seventh Session,
held at Marrakesh from 29 October to 10 November 2001, Addendum Part Two: Action Taken by the
Conference of the Parties, FCCC/CP/2001/13/Add.1, (21 January 2002) (hereinafter: Marrakech
Accords); P. DROST, Multilateral environmental agreements, supra note 115, 287; ENB Eleventh
Conference, supra note 81, 2.
121
Marrakech Accords, supra note 120; ENB Eleventh Conference, supra note 81, 2; The Least
Developed Countries (LDC) Fund, the Special Climate Change Fund (SCCF) and Adaptation Fund.
122
B. WITTNEBEN et al., The Montreal Climate Summit, supra note 115, 94.
123
See infra, 2.C.3: Institutional framework Kyoto Protocol.
124
Marrakech Accords, supra note 120, 7; As indeed occurred: IISD, “Summary of the Twelfth
Conference of the Parties to the UN Framework Convention on Climate Change and Second Meeting
of the Parties to the Kyoto Protocol”, ENB 2006, http://www.iisd.ca/download/pdf/enb12318e.pdf, (1)
2; See infra, 4.A: Montreal Conference.
23
Union dropped its opposition against Russian membership to the World Trade Organization
(WTO).125 As a consequence of Russia’s ratification, the Kyoto Protocol entered into force, on
16 February 2005.
Currently, with 192 State parties and 1 regional economic integration organization, the EU, the
Kyoto Protocol has a near-universal membership. The most notable exception is the US.126
C.2 Commitments
The Kyoto Protocol sets forth quantitative limits on 6 greenhouse gas emissions.127 These
emission limits are legally binding.128 Only Annex I Parties that ratify the Protocol have
reduction obligations during the first commitment period, from 2008 to 2012. The
125
A. KORPPOO, J. KARAS and M. GRUBB (eds.), Russia and the Kyoto Protocol: opportunities and
challenges, London, Chatham House, 2006, 9; C. MILLER, “Developments in Climate Change in 2004:
Three Cheers for Russia”, CJIELP 2004, (143) 146; H. E. OTT, Climate Policy Post-2012, supra note
18, 16; C. F. PARKER, C. KARLSSON, Climate Change and the European Union’s Leadership Moment,
supra note 102, 929; The then President Putin acknowledged: “The European Union has made
concessions on some points during the negotiations on the WTO. This will inevitably have an impact on
our positive attitude to the Kyoto process. We will speed up Russia’s movement towards ratifying the
Kyoto Protocol.”: President of Russia, Official Web Portal, “Press Conference following the European
Union-Russia
Summit”,
(21
May
2004),
http://archive.kremlin.ru/eng/text/speeches/2004/05/21/2244_type82914type82915_64707.shtml.
126
UNFCCC,
Status
of
Ratification
of
the
Kyoto
Protocol,
http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php, (providing a list of signatories
and ratification of the Protocol as of 2 April 2011).
127
Annex A to the Kyoto Protocol mentions these 6 gases and the sectors/ sources in which they should
be reduced.
128
On the legally binding character of treaty-provisions, see infra: 5.A: A legally binding regime?; The
emission limits of the Kyoto Protocol are put in mandatory language, as Parties “shall”; in contrast to
the emission limits in the UNFCCC, where Parties “aim”: UNFCCC, Tracing the Origins of the Kyoto
Protocol: An Article-by Article History, Technical Paper prepared by J. Depledge, FCCC/TP/2000/2,
(25 November 2000) (hereinafter: UNFCCC, Tracing the Origins of the Kyoto Protocol), §138.
24
establishment of this first period was a necessary compromise.129 As the Kyoto Protocol only
imposes reduction obligations on Annex I Parties, it clearly implements the CDR principle.130
Each Annex I Party accepted its own quantified emission limitation or reduction objective
(QELRO).131 QELROs indicate the average level of anthropogenic carbon dioxide equivalent
emissions of greenhouse gases that an Annex I Party is allowed to emit on an annual basis
during a certain commitment period.132 An example makes this abstract definition clearer. A
QELRO of 100 means that a Party can emit the same level of emissions as during the base
year. If the QELRO is lower than 100, average emissions would have to decrease during the
commitment period in comparison to the base year. Vice versa, if the QELRO is higher,
average emissions are allowed to increase. The QELRO is used to calculate the concrete
amount of emissions that an Annex I Party is allowed to emit, named the ‘Assigned Amount’.
These allowed emissions are divided into ‘Assigned Amount Units’ (AAUs).133
129
UNFCCC, Tracing the Origins of the Kyoto Protocol, supra note 128, §176-179; Earlier, Parties had
proposed to install the first period from 2006 until 2010: IISD, “Report of the Third Conference of the
Parties to the United Nations Framework Convention on Climate Change”, ENB 1997,
http://www.iisd.ca/download/pdf/enb1276e.pdf, (1) (hereinafter: ENB Third Conference), 3-4; The EU
even insisted on starting in 2005. However, the US claimed that making all necessary adjustments
would require more time: M. GRUBB, C. VROLIJK, D. BRACK, The Kyoto Protocol: A Guide and
Assessment, London, Royal Institute of International Affairs, 1999, 69.
130
S. AGUILAR, “Elements for a Robust Climate Regime Post-2012: Options for Mitigation”, RECIEL
2007, vol. 16, (356) (hereinafter: S. AGUILAR, Elements for a Robust Climate Regime Post-2012), 362;
E. BURLESON, “Multilateral Climate Change Mitigation”, University of San Fransisco Law Review
2007, vol. 41, (1) 8; A.M. HALVORSSEN, Global Response to Climate Change, supra note 21, 853; A.
M. HALVORSSEN, Common, but Differentiated Commitments in the Future Climate Change Regime,
supra note 51, 256; T. HONKONEN, The Principle of Common But Differentiated Responsibility, supra
note 51, 259.
131
These specific targets for each country are listed in Annex B to the Kyoto Protocol.
132
UNFCCC, Issues relating to the transformation of pledges for emission reductions into quantified
emission limitation and reduction objectives: methodology and examples, FCCC/TP/2010/3, (20 July
2010), 4.
133
An AAU is a unit issued pursuant to the relevant provisions in these modalities for the accounting of
assigned amounts and is equal to one metric tonne of carbon dioxide equivalent, calculated using global
warming potentials defined by decision 2/CP.3 or as subsequently revised in accordance with Article 5:
UNFCCC, Decision 13/CMP.1, Modalities for the accounting of assigned amounts under Article 7,
paragraph 4, of the Kyoto Protocol, in Report of the Conference of the Parties serving as the meeting
of the Parties to the Kyoto Protocol on its first session, held at Montreal from 28 November to 10
December 2005, Addendum Part Two: Action taken by the Conference of the Parties serving as the
meeting of the Parties to the Kyoto Protocol at its first session, FCCC/KP/CMP/2005/8/Add.2, (30
March 2006) (hereinafter: Decision 13/CMP.1), Annex, 24.
25
As a whole, the Annex I parties would have to reduce their emissions by 5.2 % over 1990
levels by the end of the first commitment period.134 This target did not result from a
stabilisation scenario developed by the IPCC; it was the mere result of bargaining.135 In order
to help Annex I Parties to fulfil these commitments in a more cost-efficient manner, the Kyoto
Protocol installs three flexible mechanisms.136 To be able to participate in these mechanisms,
Parties must meet general eligibility requirements (for instance, having ratified the Protocol,
having calculated their AA) and for each flexible mechanism, additional detailed eligibility
requirements are defined.137
First, the mechanism of joint implementation: this implies that Annex I Parties may transfer to,
or acquire from other Annex I parties ‘Emission Reduction Units’ (ERUs)138 resulting from
projects aimed at reducing anthropogenic emissions by sources or enhancing anthropogenic
removals by sinks of greenhouse gases (Kyoto Protocol, article 6.1). Project must inter alia
enjoy the approval of the Parties involved, and must provide a reduction or removal, that is
additional to any that would otherwise occur (Kyoto protocol, article 6.1 (a) & (b)). It is
important to note that joint implementation only applies between Annex I parties.
This stands in contrast with the second flexible mechanism, the Clean Development
Mechanism (CDM). Its purpose is to assist Parties not included in Annex I (developing
nations) in achieving sustainable development and in contributing to the ultimate objective of
the Convention, and to assist Annex I Parties in achieving compliance with their quantified
134
This is significantly lower than the 15% by developed countries that the EU proposed during the
negotiations: ENB Third Conference, supra note 129, 3-4.
135
J. DE CENDRA DE LARRAGAN, “EU Climate Change Mitigation Law: is it Adequate, is it Fair?” in B.
DELVAUX, M. HUNT and K. TALUS (eds.), EU Energy Law and Policy Issues, Euroconfidentiel,
Rixensart, 2009, (193) (hereinafter: J. DE CENDRA DE LARRAGAN, EU Climate Change Mitigation
Law), 196.
136
These flexible mechanisms were initially strongly opposed by the EU, which accepted them in the
end to keep the USA on board: R. WURZEL and J. CONNELLY (eds.), The European Union as a Leader
in International Climate Change Politics, Abingdon, Routledge, 2011 (hereinafter: R. WURZEL, J.
CONNELLY, The European Union as a Leader), 6.
137
These requirements will not be examined in more detail. An overview can be found on
http://unfccc.int/kyoto_protocol/mechanisms/items/1673.php.
138
An ERU is a unit issued pursuant to the relevant provisions in these modalities for the accounting of
assigned amounts and is equal to one metric tonne of carbon dioxide equivalent, calculated using global
warming potentials defined by decision 2/CP.3 or as subsequently revised in accordance with Article 5:
Decision 13/CMP.1, supra note 133, Annex, 24.
26
emission limitation and reduction commitments under Article 3139 (Kyoto Protocol, article
12.2). The units generated pursuant to Article 12 of the Kyoto Protocol are called “Certified
Emission Reductions” (CERs).140 Similar as the joint implementation, CDM requires approval
of the Parties involved, real long-term benefits related to the mitigation to climate change and
an additional emission reduction to any that would occur in the absence of the certified project
activity (Kyoto Protocol, article 12.5 (a), (b) & (c)).
Although this system purposes to help developing nations attain sustainable development, it
was long perceived by some of them as a way for Annex I parties to avert their
responsibilities.141 Concerns have also risen on the geographical distribution of projects. The
overall majority of projects are registered in Brazil, China and India; only very few projects
are located in Africa.142
More fundamentally, the requirement of ‘additionality of the project’ is interpreted in a sense
that creates room for windfall profits.143 The Marrakech Accords state on additionality: “A
CDM project activity is additional if anthropogenic emissions of greenhouse gases by sources
are reduced below those that would have occurred in the absence of the registered CDM
project activity”.144 The CDM Executive Board proposed to qualify a project only as additional
if it would not have occurred in the absence of CDM. Pressure of Annex I Parties made that
projects are seen as additional from the moment they provide less emissions than in the case
the project would not have been implemented, or the so-called environmental additionality.145
139
S. FREELAND, The Kyoto Protocol: An Agreement without a future?, supra note 20, 533.
A CER is a unit issued pursuant to Article 12 and requirements thereunder, as well as the relevant
provisions in the annex to decision 3/CMP.1, and is equal to one metric tonne of carbon dioxide
equivalent, calculated using global warming potentials defined by decision 2/CP.3 or as subsequently
revised in accordance with Article 5: Decision 13/CMP.1, supra note 133, Annex, 24.
141
For a critical review of this mechanism, see R. GORDON, Climate change and the poorest nations,
supra note 39, 1610-1622.
142
UNFCCC,
Clean
Development
Mechanism,
Project
Cycle
Search,
http://cdm.unfccc.int/Projects/projsearch.html; J. DE CENDRA DE LARRAGAN, EU Climate Change
Mitigation Law, supra note 135, 197; ASEA- EACIFIC EMISSIONS TRADING FORUM (ed.), “The Clean
Development
Mechanism:
Supply,
demand
and
future
prospects”,
2010,
http://www.carbonmarketinstitute.org/media/comms/AETF_CDM_2010.pdf, (1) 9.
143
W. GELDHOF and T. DERUYTTER, “The Copenhagen Accord and the Clean Development
Mechanism. An assessment of the legality of CDM-projects and demand for CERs after 2012 in the
light of the Copenhagen Accord”, RDAI 2010, (467) (hereinafter: W. GELDHOF, T. DERUYTTER, “The
Copenhagen Accord and the Clean Development Mechanism), 478.
144
Marrakech Accords, supra note120, §43.
145
B. PEARSON and Y. S. LOONG, “The CDM: Reducing Greenhouse Gas Emissions or Relabelling
Business As Usual?”, Third World Network and CDM Watch 2003, www.twnside.org.sg/title/cdm.doc.
140
27
This implies that projects that are profitable and would have occurred in any event, can be
relabeled as CDM-projects and provide Annex I Parties with CERs.146
The third flexible mechanism, the emission trading system, is provided in article 17 of the
Kyoto Protocol.147 Parties that have ‘spare’ emissions -emissions that are assigned to them, but
that they do not need-, can sell their excess capacity to other Parties that do not attain their
target under article 3.
Common to these three flexible mechanisms, is the requirement of supplementarity. More
specifically, article 6.1 (d) states that joint implementation ‘shall be supplemental to domestic
actions for the purpose of meting commitments’; article 12.3 (b) stipulates that CDM may be
used only for ‘part of their quantified emission limitation’ and article 17 stipulates that any
trading system must be supplemental to domestic actions for the purpose of meeting quantified
emission limitation’. From the beginning, the EU stressed the importance of domestic actions
as means of meeting the commitments under article 3. Therefore, the group insisted on putting
a “concrete ceiling” on the use of the flexible mechanisms.148 However, the UG wanted to
obtain maximum flexibility and thus opposed a quantitative cap.149 After extensive
negotiations, no quantitative cap on the flexible mechanisms was installed. The Marrakesh
Accords merely stated that domestic actions shall constitute a significant element of the effort
146
Ibid.
This mechanism was included at the insistence of the United States and other Umbrella Group
members: J.A. FRANKEL, “You’re Getting Warmer: The Most Feasible Path for Addressing Global
Climate Change Does Run Through Kyoto”, Weatherhead Center for International Affairs Harvard
University 2002, http://www.wcfia.harvard.edu/node/699, (1) 10; ENB Third Conference, supra note
129, 11-12; The EU initially opposed such trading system heavily, but now runs one of the largest
trading systems in the world: E. WOOD, “CAP Kaput? US turns its back on carbon but Europe holds on
course”, Renewable Energy World 2011, (59) 60; C. F. PARKER, C. KARLSSON, Climate Change and
the European Union’s Leadership Moment, supra note 102, 930.
148
UNFCCC, Preparatory Work Needed for the Fourth Session of the Conference of the Parties on the
Items Listed in Decision 1/CP.3, Paragraph 5, Submissions by Parties, Addendum,
FCCC/SB/1998/MISC.1/Add.3, (5 June 1998), 6; Roughly 50% of the Kyoto commitments would have
to be made by domestic GHG reductions: R. WURZEL, J. CONNELLY, The European Union as a
Leader, supra note 136, 7; F. M. PLATJOUW, “Reducing Greenhouse Gas Emissions at Home or
Abroad? The Implications of Kyoto’s Supplementarity Requirement for the Present and Future Climate
Change Regime”, RECIEL 2009, vol.18, (244) (hereinafter: F. M. PLATJOUW, Kyoto’s Supplementarity
Requirement), 245.
149
UNFCCC, Matters related to Decision 1/CP.3 Paragraph 5, Compilation of Submissions by Parties,
FCCC/CP/1998/MISC.7, (7 October 1998), 24-25; S. DESSAI and E. L. SCHIPPER, “The Marrakech
Accords to the Kyoto Protocol: analysis and future prospects”, Global Environmental Change 2003,
vol. 13, (149) 150; F. M. PLATJOUW, Kyoto’s Supplementarity Requirement, supra note 148, 245.
147
28
made by each Party. What constitutes ‘a significant element’, was not defined more
precisely.150
At the end of the first commitment period, Parties will be required to show that they meet their
reduction commitments under article 3 of the Kyoto Protocol. To this end, they can avail
themselves of several Kyoto-units: AAUs, ERUs, CERs and Removal Units (RMUs).151 From
a technical point of view, every Annex I Party is obliged to retire a quantity of these Kyotounits equal to or greater than its total Annex A greenhouse gas emissions during the first
commitment period to a designated account in a national registry.152
C.3 Institutional framework
The Conference of the Parties of the UNFCCC serves as the meeting of the Parties to the
Kyoto Protocol (Kyoto Protocol, article 13.1).153 Decisions under the Kyoto Protocol can only
be taken by those that are Parties to the Protocol (Kyoto Protocol, article 13.2). Countries that
are no member to the Kyoto Protocol may participate as observers in the proceedings of the
CMP. The CMP keeps the implementation of the Protocol under regular review, and has the
mandate to take the decisions necessary to promote its effective implementation (Kyoto
Protocol, article 13.4).
150
F. M. PLATJOUW, Kyoto’s Supplementarity Requirement, supra note 148, 246; Y. MATSUI, “Some
Aspects of the Principle of “Common but Differentiated Responsibilities, supra note 52, 162; A.
MICHAELOWA, S. BUTZENGEIGER and M. JUNG, “Graduation and Deepening- An ambitious post-2012
climate policy scenario”, International Environmental Agreements: Politics, Law and Economics 2005,
vol. 5, (25) 39; L. RAJAMANI, Differential Treatment in International Environmental Law, supra note
34, 187.
151
A RMU is a unit issued pursuant to the relevant provisions in these modalities for the accounting of
assigned amounts and is equal to one metric tonne of carbon dioxide equivalent, calculated using global
warming potentials defined by decision 2/CP.3 or as subsequently revised in accordance with Article 5:
Decision 13/CMP.1, supra note 133, Annex, 24; These units find their basis in land use, land-use
change and forestry (LULUCF) activities such as reforestation.
152
Decision 13/CMP.1, supra note 133, Annex, §13-14; UNFCCC (ed.), Kyoto Protocol Reference
Manual on Accounting of Emissions and Assigned Amount,
http://unfccc.int/resource/docs/publications/08_unfccc_kp_ref_manual.pdf, (1) 37.
153
Consequently, it is called: The Conference of the Parties serving as the meeting of the Parties to the
Kyoto Protocol (CMP).
29
The rules of procedure of the Conference of the Parties are applied mutatis mutandis, implying
that consensus is equally required. The ordinary sessions of the CMP are held in conjunction
with the ordinary sessions of the COP (Kyoto Protocol, article 13.6), in the end of the year.
The Secretariat, Subsidiary Body for Scientific and Technological Advice and the Subsidiary
Body for Implementation of the UNFCCC serve in their respective capacity for the Kyoto
Protocol (Kyoto Protocol, articles 14.1 & 15.1).154
C.4 Compliance mechanism
The compliance mechanism is founded on four layers of rules.155 Firstly, article 18 of the
Kyoto Protocol provides the legal basis of the non-compliance procedure. It mandates the
CMP to approve at its first session, procedures and mechanisms to determine and address cases
of non-compliance with the provisions of the Protocol. Article 18 additionally provides that
procedures and mechanisms under this article, entailing binding consequences should be
adopted by means of an amendment to the Protocol.156 Despite the clear wording of this last
sentence, the whole compliance mechanism was adopted in a CMP decision.
From this procedural choice, once cannot simply derive that there are no binding
consequences. When examining the consequences the Enforcement Branch (EB) of the
Compliance Committee157 can impose, it is plain that these are of a binding nature. In case a
Party exceeds its Assigned Amount,158 the EB can determine the suspension of eligibility
under the emission trading system, and deduct from that party’s assigned amount for the
second commitment period a number of tonnes equal to 1.3 times the amount in tonnes of
154
A swift agreement was concluded on this arrangement: UNFCCC, Tracing the Origins of the Kyoto
Protocol, supra note 128, §370 & §375.
155
S. OBERTHÜR and R. LEFEBER, “Holding countries to account: The Kyoto Protocol’s compliance
system revisited after four years of experience”, Climate Law 2010, vol. 1, (133) 133.
156
UNFCCC, Proposal from Saudi Arabia to amend the Kyoto Protocol, FCCC/KP/CMP/2005/2, (26
May 2005); Saudi Arabia had invoked article 18, claiming that for the compliance mechanism to be
legally binding, the Protocol should be amended. However, most states preferred to immediately adopt
the mechanism by a COP/MOP decision and to amend the Protocol later. The basis for their view is
presumably the necessity of the compliance mechanism to define eligibility to use the flexible
mechanisms, and the will to avoid lengthy ratification procedures: ENB Eleventh Conference, supra
note 81, 18; C. BAUSCH and M. MEHLING, “Alive and Kicking: The First Meeting of the Parties to the
Kyoto Protocol”, RECIEL 2006, (193) (hereinafter: C. BAUSCH, M. MEHLING, Alive and Kicking),
198; On this topic and the Saudi Arabian stance in climate negotiations in general, see: J. DEPLEDGE,
“Striving for No: Saudi Arabia in the Climate Change Regime”, Global Environmental Politics 2008,
(9-35).
157
See infra, p. 32.
158
See supra, p. 25.
30
excess emissions.159 The non-compliant party will in other words be subjected to an increased
30% reduction in the following commitment period.
These two consequences may be regarded as true sanctions, which do impose binding
consequences on the affected party;160 the CMP thus went beyond the explicit authority
granted to it by article 18 of the Kyoto Protocol.161
This CMP decision, 27/CMP.1 is the second layer of the compliance system, which contains
the procedures and mechanisms. The third layer contains the rules of procedure, developed by
the Compliance Committee and adopted by the CMP.162 Finally, the Committee elaborated
working arrangements to give these Rules of Procedure practical effect.163
159
UNFCCC, Decision 27/CMP.1, Procedures and mechanisms relating to compliance under the
Kyoto Protocol, in Report of the Conference of the Parties serving as the meeting of the Parties to the
Kyoto Protocol on its first session, held at Montreal from 28 November to 10 December 2005,
Addendum Part Two: Action taken by the Conference of the Parties serving as the meeting of the
Parties to the Kyoto Protocol, FCCC/ KP/CMP/2005/8/Add.3, (30 March 2006) (hereinafter: Decision
27/CMP.1), 102-103; This CMP decision adopts the decision taken by the COP in this field: Decision
24/CP.7: Procedures and mechanisms relating to compliance under the Kyoto Protocol, in Report of
the Conference of the Parties on its Seventh session, held at Marrakesh from 29 October to 10
November 2001, Addendum Part Two: Action taken by the Conference of Parties,
FCCC/CP/2001/13/Add.3, 64.
160
M. MONTINI, “The Compliance Regime of the Kyoto Protocol” in W. TH. DOUMA, L. Massai and
M. Montini (eds.), The Kyoto protocol and beyond; legal and policy challenges of climate change, Den
Haag, Asser Press, 2007, (95) 101.
161
J. BRUNNÉE, COPing with consent, supra note 34, 29; B. MÜLLER, W. GELDHOF, T. RUYS,
“Unilateral Declarations: The Missing Legal Link in the Bali Action Plan”, European Capacity
Building Initiative 2010, (1) (hereinafter: B. MÜLLER et al., Unilateral Declarations), 21.
162
UNFCCC, Decision 4/CMP.2, Compliance Committee, in Report of the Conference of the Parties
serving as the meeting of the Parties to the Kyoto Protocol on its second session, held at Nairobi from 6
to 17 November 2006, Addendum Part Two: Action taken by the Conference of the Parties serving as
the meeting of the Parties to the Kyoto Protocol, FCCC/KP/CMP/2006/10/Add.1, (4 March 2007), 17;
UNFCCC, Decision 4/CMP.4: Compliance Committee, in Report of the Conference of the Parties
serving as the meeting of the Parties to the Kyoto Protocol on its fourth session, held at Poznan from 1
to 12 December 2008, Addendum Part Two: Action taken by the Conference of the Parties serving as
the meeting of the Parties to the Kyoto Protocol, FCCC/KP/CMP/2008/11/Add.1, (19 March 2009), 14.
163
UNFCCC, Organizational Matters, in Report of the Conference of the Parties serving as the meeting
of the Parties to the Kyoto Protocol on its second session, held at Nairobi from 6 to 17 November 2006,
Annual report of the Compliance Committee to the Conference of the Parties serving as the meeting of
the Parties to the Kyoto Protocol, FCCC/KP/CMP/2006/6, (22 September 2006).
31
Central in the non-compliance procedure is the Compliance Committee.164 This Committee is
divided into two branches, known as the Facilitative Branch and Enforcement Branch. The
mandate of the Facilitative Branch is to provide advice and facilitation to Parties in
implementing the Protocol, and to promote compliance with it. The consequences applied by
the Facilitative Branch range from advice to facilitation of financial and technical assistance.
The Enforcement Branch investigates questions of implementation from expert review teams
and from parties. It can determine whether a party is in non- compliance with its QELRO,
reporting and methodological requirements, and the eligibility criteria for the flexible
mechanisms. The consequences that the Enforcement Branch can apply include, as mentioned
supra, the suspension of eligibility to use the flexible mechanisms and the deduction of 1.3
times the amount of excess tonnes from the assigned amount in the second commitment
period.165
FITZMAURICE argued that the Kyoto Protocol compliance system, with mechanisms and
institutions that can take decisions binding on states, is “an example of (perhaps) a new system
of rule-setting”.166 Indeed, Parties agreeing to such system in a MEA is highly unusual and can
be regarded as a positive evolution. But negative comment is easy to find as well. Parties that
fail to meet their reduction obligations, can be subjected to a decreased future allocation. But
since these future allocations are negotiable, and no certainty exists on a subsequent
commitment period, the sanction might not be too deterring after all.167
164
G. ULFSTEIN and J. WERKSMAN, “The Kyoto Compliance System: Towards Hard Enforcement” in
J. HOVI, O. S. STOKKE and G. ULFSTEIN, Implementing the Climate Regime: International
Enforcement, London, Earthscan, 2005, (39) (hereinafter: G. ULFSTEIN, J. WERKSMAN, The Kyoto
Compliance System), 44.
165
Decision 27/CMP.1, supra note 159, Annex, Section IV & V; G. ULFSTEIN, J. WERKSMAN, The
Kyoto Compliance System, supra note 164, 45-48.
166
M. FITZMAURICE, Consent to be Bound, supra note 84, 505.
167
O. TICKELL, Kyoto 2- How to manage the global greenhouse, New York, Zed Books, 2008, 43; R.
O. KEOHANE and K. RAUSTIALA, “Towards a Post-Kyoto Climate Change Architecture: A Political
Analysis” in J. E. ALDY and R. N. STAVINS, Post-Kyoto international climate policy: implementing
architectures for agreement, Cambridge, Cambridge University Press, 2010, (372) (hereinafter: R. O.
KEOHANE and K. RAUSTIALA, Towards a Post-Kyoto Climate Change Architecture) 377.
32
C.5 Comments
When revising the Kyoto Protocol, the outcome is usually ambivalent. On the one hand, the
Kyoto Protocol architecture has been criticized as inadequate, mainly for three reasons: it
would impose high costs, neither the largest nor the fastest-growing emitters are bound by it,
and –even if fully complied with- it only creates a modest short-term progress in global GHG
emissions reductions, while failing to offer a long-term solution.168 On the other hand, the KP
has been labelled the ‘only game in town’169, and many claimed that the focus should be on
developing long-term climate policies that build on Kyoto’s foundations, instead of suggesting
alternatives.170 Obviously, nobody claimed the Kyoto Protocol to be the ultimate solution for
the climate problem. It was always meant to be a first step, creating broader engagement and
establishing a framework necessary for the future regime. 171
168
J. E. ALDY, R. N. STAVINS, Architectures for agreement, supra note 43, 31; J. ALDY, S. BARRETT
and R. N. STAVINS, “Thirteen plus one: a comparison of global climate policy architectures”, Climate
Policy 2003, vol. 3, (373) 382.
169
R. H. J. GUMMER, “Viewpoint: Kyoto - the only game in town”, BBC News (29 July 2004),
http://news.bbc.co.uk/2/hi/science/nature/3932947.stm.
170
R. N. STAVINS, “An International Policy Architecture for the Post-Kyoto Era” in E. ZEDILLO (ed.),
Global warming: looking beyond Kyoto, Washington D.C., Brookings Institution Press, 2008, (145)
146; Y. KAMEYAMA, “Dual track approach: an optional climate architecture for beyond 2012”,
National Institute for Environmental Studies Discussion Paper 2003, http://wwwiam.nies.go.jp/climatepolicy/pdf/03-2dp.pdf, (1) 5.
171
J. E. ALDY, R. N. STAVINS, Architectures for agreement, supra note 43, 31; M. T. EL-ASHRY, “An
Overview of This Issue: Framework for a Post-Kyoto Climate Change Agreement”, SDLP 2008, vol. 8,
(2) 5; C. SPENCE, K. KULOVESI, M. GUTIÉRREZ, M. MUNOZ, “Great Expectations: Understanding Bali
and the Climate Change Negotiations Process”, RECIEL 2008, vol. 17, (142) (hereinafter: C. SPENCE et
al., Great Expectations), 143.
33
3. 2012- THE RACE TO “REPLACE” KYOTO
A. IDENTIFICATION OF THE PROBLEM
The Kyoto Protocol itself will not expire in 2012, since it does not contain a provision on its
termination.172 So far, it is solely the first commitment period that comes to an end on 31
December 2012. In its current form, the Kyoto Protocol does not include specific obligations
or policies after the first commitment period. This does not mean, however, that in absence of
an agreement on subsequent commitments, countries would be allowed to emit GHGs without
any restriction. The UNFCCC, and more in particular, the obligation to take measures to avoid
a dangerous anthropogenic interference with the climate system, remain applicable.173
Admittedly, even if theoretically possible to hold a country liable in case of failure to act
according to its obligations;174 the vague wording of the UNFCCC and procedural and
diplomatic difficulties will make it in practice quasi- impossible to obtain any tangible result
from such procedure.175
172
C. BAUSCH, M. MEHLING, “Tracking Down the Future Climate Regime- An Assessment of Current
Negotiations under the U.N.”, CCLR 2007, (4) (hereinafter: C. BAUSCH, M. MEHLING, Tracking Down
the Future Climate Regime), 5; T. HOUSER, “Copenhagen, the Accord, and the Way Forward”,
Peterson
Institute
for
International
Economics
Policy
Brief
2010,
http://www.iie.com/publications/pb/pb10-05.pdf , (1) (hereinafter: T. HOUSER, Copenhagen, the
Accord, and the Way Forward), 5; K. TANGEN, “The Odd Couple? The Merits of Two Tracks in the
International Climate Change Negotiations”, The Finnish Institute of International Affairs Briefing
Paper 2010, (1) http://www.upi-fiia.fi/en/publication/114/, 5; UNFCCC Secretariat Legal Affairs: “The
Kyoto Protocol is an agreement that provides a framework of institutions and obligations over an
indefinite period (…) In our understanding, the Protocol, including the provisions relating to the CDM,
will remain in force notwithstanding the conclusion of the CP1 on 31 December 2012”: Legal Expert
Group EU (LEX), “LEX Gap Paper”, on file with author, (1) 1, source of advice unknown; R. TOL,
“Long
live
the
Kyoto
Protocol”,
Vox
(23
January
2010),
(1)
http://www.voxeu.org/index.php?q=node/4513, 2; LEGAL RESPONSE INITIATIVE (ed.), “Legal options
to avoid a gap and legal implications of a possible gap”, LRI Briefing Paper 2010,
http://www.legalresponseinitiative.org/download/BP22E%20-%20Briefing%20Paper%20%20Consequences%20of%20a%20gap%20between%20commitment%20periods%20(19%20July%202
010).pdf, (1) (hereinafter: LRI, Legal options to avoid a gap), 4.
173
R. LEFEBER, An Inconvenient Responsibility, Utrecht, Eleven International Publishing, 2009,
(hereinafter: R. LEFEBER, An Inconvenient Responsibility) 9.
174
INTERNATIONAL LAW COMMISSION (ed.), “Draft articles on Responsibility of States for
Internationally Wrongful Acts, with commentaries”, Yearbook of the International Law Commission
2001, vol. II, part two (hereinafter: Draft articles on Responsibility of States), articles 1 & 2; R.
VERHEYEN, Climate Change Damage and International Law- Prevention Duties and State
Responsiblity, Leiden, Martinus Nijhoff Publishers, 2005, 226.
175
R. LEFEBER, An Inconvenient Responsibility, supra note 173, 9.
34
According to the Protocol, commitments for subsequent periods shall be established in
amendments, and negotiations for such commitments started in 2005 (Kyoto Protocol, article 3
.9). Although we are currently mid-way 2011, there is essentially no agreement on how the
post-2012 architecture for the climate change regime should look like. Nonetheless, the
avoidance of a gap is crucial, for environmental and political reasons, as well as for the private,
industrial sector. The latter need stable reduction policies in order not to lose key incentives to
address climate change.176 Moreover, investors need legal certainty to keep the carbon market
functioning, a market which places billions in clean energy projects.177
B. IDENTIFICATION OF SOME KEY ISSUES POST-2012
B.1 Broadening of the participation
B.1.1 Large developing nations
The conception that developing nations will have to take on mitigation measures in a post2012 regime follows an obvious logic. First of all, GHG emissions from some developing
countries are substantial, and expanding. The emissions from large developing countries have
start to surpass, or will do so in the near future, those of developed nations.178 Already in 2009,
two thirds of GHG emissions emanated from non-OECD members.179 Recent reports state that
176
C. BAUSCH, M. MEHLING, Tracking Down the Future Climate Regime, supra note 172, 9; S.
AGUILAR, Elements for a Robust Climate Regime Post-2012, supra note 130, 357; The European
Chemical Industry Council states that moving agreed goalposts creates uncertainty with regard to
investment and manufacturing perspectives: CEFIC (ed.), “Cefic comments on EU greenhouse gas
reduction
targets
and
policies”,
(21
March
2011),
http://www.cefic.org/Documents/PolicyCentre/Cefic%20comments%20on%20EU%20greenhouse%20
gas%20reduction%20targets%20and%20policies.pdf.
177
D. FOGARTY, “Kyoto pact rift threatens progress at U.N. climate talks”, Reuters (5 April 2011),
http://af.reuters.com/article/commoditiesNews/idAFL3E7F520320110405 (hereinafter: D. FOGARTY,
Kyoto pact rift threatens progress).
178
F. RONG, “Understanding developing country stances on post-2012 climate change negotiations:
Comparative analysis of Brazil, China, India, Mexico and South-Africa”, Energy Policy 2010, vol. 38,
(4582) 4582.
179
D. MURPHY, D. TIRPAK, J. DREXHAGE and F. GAGNON-LEBRUN, “Encouraging Developing
Country Participation in a Future Climate Change Regime”, International Institute for Sustainable
Development 2009, (1) (hereinafter: IISD, Encouraging Developing Country Participation), 4-9, figure
1, source: OECD, “Climate Change Mitigation: What do we do?”, Paris, OECD, 2008, 7.
35
China surpassed the US’ GHG emissions and now is the largest emitter.180 Nonetheless, it
remains important to stress that although the overall levels are approaching or surpassing the
share of the world total emissions of developed nations, the CO2- emissions per capita in those
countries are still far below those of developed nations.181
Second, the process of “leakage”182 provides a setback for efforts made by developed
nations.183 In case large developing countries remain free of emission reduction obligations,
there is a very high possibility that certain industries move to those countries. This replacement
of emissions would undo the effect of the reduction policies of developed nations. And finally,
the principle of common but differentiated responsibilities demands differentiation within the
group of ‘developing’ nations.184
If we want to address climate change effectively, the regime after 2012 should include the
major developing nations as well. In the negotiations, many developed countries put pressure
on developing nations, especially on the so-called BASIC- group185, to take on emission
reductions that are more comparable to their owns.186
180
S. SWARTZ and S. OISTER, “China Tops US in Energy Use”, Wall Street Journal (18 July 2010),
http://online.wsj.com/article/SB10001424052748703720504575376712353150310.html;
D.
ZINNBAUER, “Climate policies in China: a gradual move towards ambition, more transparency and
nascent citizen involvement” in TRANSPARENCY INTERNATIONAL (ed.), Global Corruption Report:
Climate Change, London, Earthscan, 2011, (63-70); B. ADAMS and G. LUCHSINGER, Climate justice
for a changing planet: a primer for policy makers and NGO’s, Geneva, UN Non-Governmental Liaison
Service, 2009, 5.
181
IISD, Encouraging Developing Country Participation, supra note 179, 10, source: INTERNATIONAL
ENERGY AGENCY, “Key World Energy Statistics”, Paris, 2008; J. WERKSMAN, K. HERBERTSON, The
Legal Character of National Actions, supra note 34, 6, source: WRI Earthtrends, UNDP Human
Development Report 2008; Y. SCHREUDER, The corporate greenhouse, supra note 111, 25.
182
The movement of emissions-generating activities from one country to another with weaker or no
controls.
183
W. D. DAVIS, “What does “green” mean?: Anthropogenic climate change, geoengineering, and
international environmental law”, Georgia Law Review 2009, vol. 43, (1) 4.
184
See supra: CDR, p.
185
Brazil, South- Africa, India and China: J. VIDAL, “China, India, Brazil and South Africa prepare for
post-Copenhagen
meeting”,
The
Guardian
(13
January
2010),
http://www.guardian.co.uk/environment/2010/jan/13/developing-countries-basic-climate-change;
D.
LEARY and B. PISUPATI (eds.), The future of international environmental law, New York, United
Nations University Press, 2010, 158.
186
J. WERKSMAN, K. HERBERTSON, The Legal Character of National Actions, supra note 34, 6.
36
B.1.2 The United States of America
The US is currently the only Annex I Party without international legally binding reduction
targets. Although recently more Parties expressed their opposition to new targets,187 the US
remains the biggest opponent. Unfortunately, it is also one of the biggest emitters. More
precisely, it is responsible for 20% of annual global emissions and 30% of historical
emissions.188 Moreover, the US opposition is one of the main reasons why large emitting
developing nations refuse to engage in a binding agreement with reductions for themselves.
The US has a great responsibility for these reasons. Any future regime that does not include
the US therefore has little chance to be truly effective.
B.2 Compliance
As already mentioned when discussing the compliance mechanism; in case no subsequent
commitment period is concluded, there is no legal means within the Kyoto Protocol to ensure
that Parties comply with their QELRO of the first commitment period. Also the law on state
responsibility has little chance of ensuring compliance in case a state fails to act according to
its obligations. In the context of world politics, it is indeed very difficult to force powerful
states to comply with international obligations if these are not profitable for them. Some
authors perceive a general cap-and-trade system, like the system set forth by the Kyoto
Protocol, as the only effective approach.189 But whatever form the future regime takes, the
pressure to comply with the commitments it contains, must be strong enough to sustain
policies to combat climate change and provide incentives to private investors. The possibility
of undisturbed free-ridership gives a wrong signal to governments, industries and investors and
is not in accordance with the seriousness of the problem.
187
D. TEN KATE, A. MORALES, “Japan, Russia Won’t Take on New Kyoto Targets, UN’s Climate
Chief Says”, Bloomberg (8 April 2011), http://www.bloomberg.com/news/2011-04-08/no-nationfundamentally-opposes-extending-kyoto-treaty-un-s-figueres-says.html (hereinafter: D. TEN KATE, A.
MORALES, Japan, Russia Won’t Take on New Kyoto Targets).
188
WORLD RECOURSES INSTITUTE (ed.), “Contributions to Global Warming: Historic Carbon Dioxide
Emissions
from
Fossil
Fuel
Combustion,
1900-1999”,
Earth
Trends,
http://earthtrends.wri.org/text/climate-atmosphere/map-488.html.
189
R. O. KEOHANE and K. RAUSTIALA, Towards a Post-Kyoto Climate Change Architecture, supra
note 167, 373.
37
4. PROGRESS AFTER THE ENTRY INTO FORCE OF THE
KYOTO- PROTOCOL190
A. MONTREAL CONFERENCE (2005)
At Montreal, the CMP held its first session. They formally adopted decisions on the remaining
operational details of the Kyoto Protocol, including the Marrakesh Accords.191
As the Kyoto Protocol had entered into force, both the CMP and the COP now engaged in
negotiations on long-term international cooperation.192 Although these negotiations are
formally distinct, from the first COP/CMP meeting on, it was clear that discussions within one
group were dependent on progress made in others, and that any deal would be a “package
deal”.193
A.1 Meeting of the Parties (CMP1)
With regards to the commitments for Annex I Parties for subsequent periods, the CMP194
decided to initiate a process in accordance with Article 3.9 of the Protocol. According to this
article, consideration of commitments during subsequent periods must be initiated at least 7
years before the end of the first commitment period, thus in 2005, coincidentally the year in
which the meeting of the Parties first convened (Kyoto Protocol, article 3.9).
190
This chapter aims to provide an overview of the agreements and the status of the negotiations, from
the entry into force of the Kyoto Protocol until the adoption of the Cancun Agreements. Not all
conferences will be examined in this overview; it is limited to the conferences where decisions with
particular relevance for the post-2012 legal architecture are taken.
191
See supra: 2.C.1, Negotiations and entry into force; As four years had elapsed between the
negotiation of these Accords and their actual adoption, participants had feared that some of the
decisions would be reopened for negotiations. To the relief of many, this did not take place and the
Accords were adopted unanimously: C. BAUSCH, M. MEHLING, Alive and Kicking, supra note 156,
197.
192
IISD, “Summary of the Thirteenth Conference of the Parties to the UN Framework Convention on
Climate Change and Third Meeting of Parties to the Kyoto Protocol”, ENB 2007,
http://www.iisd.ca/download/pdf/enb12354e.pdf, (1) (hereinafter: ENB Thirteenth Conference), 2.
193
For example: the CMP adopted the decision on article 3.9 of the Kyoto Protocol at 5:57 am, and at
6:03 am the COP adopted theirs on long-term cooperative action after high-level informal discussions
on a package agreement: ENB Eleventh Conference, supra note 81, 14.
194
Since the subsequent commitment periods can only be concluded between those that are actually
Party to the Kyoto Protocol, they are being dealt with within the CMP.
38
When Parties first addressed this issue, the differences between their positions immediately
became clear. Developed countries tried to link the discussions on article 3.9 with article 9 of
the Kyoto Protocol, concerning review of the Protocol. This article provides that the Meeting
of the Parties “shall periodically review this Protocol in the light of the best available scientific
information and assessments on climate change and its impacts”. Developed nations thereby
wanted to ensure broad participation in a future agreement, by conducting a comprehensive
review of the Kyoto Protocol.195
Developing countries for their part feared that a
comprehensive review would lead to new commitments for them, stressing that article 3.9
referred exclusively to commitments for Annex I Parties.196
Parties reached a compromise in the following arrangement: they agreed to include an
invitation to submit their views on article 9 by September 2006 in the report of the meeting197;
negotiations on long-term cooperation would be launched198 and with regards to article 3.9, a
new subsidiary body, the “Ad Hoc Working Group on Further Commitments for Annex I
Parties under the Kyoto Protocol” (AWG-KP) was established.199
195
C. BAUSCH, M. MEHLING, Tracking Down the Future Climate Regime, supra note 172, 10; C.
SPENCE et al., Great Expectations, supra note 171, 144.
196
Ibid.
197
UNFCCC, Article 3, paragraph 9 of the Kyoto Protocol: Consideration of Commitments for
Subsequent Periods For Parties Included in Annex I to the Convention, in Report of the Conference of
the Parties serving as the meeting of the Parties to the Kyoto Protocol on its first session, held at
Montreal from 28 November to 10 December 2005, Part One: Proceedings, FCCC/KP/CMP/2005/8,
(30 March 2006), §77; This first review under article 9 was concluded at the second CMP stating that
the Kyoto Protocol had initiated important action but that some elements needed to be further
elaborated upon. They agreed to conclude the second review in 2008: UNFCCC, Decision 7/CMP.2,
Review of the Kyoto Protocol pursuant to its Article 9, in Report of the Conference of the Parties
serving as the meeting of the Parties to the Kyoto Protocol on its second session, held at Nairobi from 6
to 17 November 2006, Addendum, Part Two: Action taken by the Conference of the Parties serving as
the meeting of the Parties to the Kyoto Protocol at its second session, FCCC/KP/CMP/2006/10/Add.1,
(2 March 2007).
198
See infra 4.A.2: COP- Conference of the Parties 11.
199
UNFCCC, 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, in Report of
the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its first
session, held at Montreal from 28 November to 10 December 2005, Addendum Part Two: Action taken
by the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol at its first
session, FCCC/KP/CMP/2005/8/Add.1, (10 December 2005) (hereinafter: Decision 1/CMP.1).
39
This open-ended ad hoc working group received the mandate to consider without delay further
commitments by Annex I Parties beyond 2012.200 The Parties agreed that the AWG-KP should
have completed its work and have it adopted by the CMP “as early as possible and in time to
ensure that there is no gap between the first and second commitment periods”201.
A.2 Conference of the Parties (COP11)
As mentioned above, part of the compromise was the engagement of all parties in a dialogue
on long-term cooperation under the UNFCCC. Many hoped that this process would integrate
large developing countries and the United States in constructive negotiations on the post-2012
climate regime.202 The negotiations on long-term action would take place through a series of
workshops, known as the “Convention Dialogue”.203 This Convention Dialogue was
‘transformed’ into the Ad Hoc Working Group on Long-term Cooperative Action (AWGLCA) during the COP in Bali.
Many safeguards were installed to prevent Parties from getting into an inconvenient position
though. The dialogue would be conducted ‘without prejudice to any future negotiations,
commitments, processes, framework or mandate under the Convention’.204 Furthermore,
Parties resolved that the dialogue would be open and non-binding, and would not open any
negotiations leading to new commitments.205 The co-facilitators of the Dialogue were
demanded to report on the dialogue at the twelfth and thirteenth session of the COP.206
B. BALI CONFERENCE (2007)
In Bali, Parties reached an agreement on a two-year process, which aimed to install a
comprehensive post-2012 regime by 2009.207 This process was laid down in the Bali
200
Ibid, §1- 2. §4: The AWG-KP can schedule its meetings as often as it deems necessary. In practice,
it congregates two times a year, once with the subsidiary bodies and once with the COP/CMP.
201
Decision 1/CMP.1, supra note 199, §3.
202
W. STERK, H. E. OTT, R. WATANABE and B. WITTNEBEN, “The Nairobi Climate Change Summit
(COP12-MOP2): Taking a Deep Breath before Negotiating Post-2012 Targets?”, JEEPL 2007, vol. 2,
(139) 140.
203
Decision 1/CP.11, supra note 20; ENB Copenhagen Conference, supra note 81, 2.
204
Decision 1/CP.11, supra note20, §1.
205
Decision 1/CP.11, supra note 20, § 2.
206
Decision 1/CP.11, supra note 20, § 6 (c).
207
ENB Thirteenth Conference, supra note 192, 1,15.
40
Roadmap.208 The Bali Roadmap consists of a number of decisions and proceeds on the two
negotiating tracks identified during the Montreal Conference- namely, a narrow one under the
Kyoto Protocol (the AWG-KP- track) and a more comprehensive one under the UNFCCC (the
Convention Dialogue, which now becomes the AWG-LCA- track).209
As mentioned with regards to the Montreal Conference; although these negotiating tracks are
formally separated (for instance, the outcomes would have to be adopted separately by the
CMP and COP), they are politically intertwined and progress in one group is largely dependent
on progress in the other.210
B.1 Meeting of the Parties (CMP3)
B.1.1 AWG-KP
During its fourth session, the AWG focused on issues relating to its work programme, future
meetings and methods of work.211 Many Annex I Parties tried to connect the AWG with other
post-2012 negotiations and stressed the need to coordinate them. To the contrary, the
developing countries emphasized the limited mandate of the working group and opposed any
formal link to other post-2012 negotiations.212 The AWG-KP managed to adopt a timetable
that placed forth 2009 as the deadline to conclude its work.213
208
The Bali Road Map includes a timetable for negotiations under the AWG-KP, a compromise on the
content of the review provided in article 9 Kyoto Protocol and the Bali Action Plan: D.B. HUNTER,
“International Climate Negotiations: Opportunities and Challenges for the Obama Administration”,
Duke Environmental Law & Policy Forum 2009, vol. 19, (247) (hereinafter: D.B. HUNTER,
International Climate Negotiations), 249.
209
ENB Thirteenth Conference, supra note 192, 19; K. KULOVESI and M. GUTIÉRREZ, “Climate
Change Negotiations Update: Process and Prospects for a Copenhagen Agreed Outcome in December
2009”, RECIEL 2009, vol. 18, (229) 230.
210
D. BODANSKY, “Legal Form of a New Climate Agreement: Avenues and Options”, Pew Center on
Global Climate Change 2009, (1) (hereinafter: D. BODANSKY, Legal Form of a New Climate
Agreement), 2; R. S. DIMITROV, “Inside UN Climate Change Negotiations: The Copenhagen
Conference”, RPR 2010, (795) (hereinafter: R. S. DIMITROV, Inside UN Climate Change Negotiations),
799.
211
ENB Thirteenth Conference, supra note 192, 16.
212
Ibid.
213
UNFCCC, Review of work programme, methods of work and schedule of further sessions, in Report
of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol
on its resumed fourth session, held in Bali from 3 to 15 December 2007, FCCC/KP/AWG/2007/5, (5
February 2008), §22.
41
B.1.2 Article 9 of the Kyoto Protocol
The second review of the Kyoto Protocol was due to be finalized in 2008.214 At Bali, Parties
agreed to submit their views on a number of issues that should be addressed in the second
review. These included among others: relevant procedural elements for inscribing
commitments for Annex I Parties in Annex B to the Kyoto Protocol; the scope, effectiveness
and functioning of the flexibility mechanisms and the minimization of adverse affects.215
In response to developing countries’ fear, the CMP decision stipulated “that the second review
shall not prejudge action that may be decided upon by the Conference of the Parties serving as
the meeting of the Parties to the Kyoto Protocol, and that it shall not lead to new commitments
for any Party”.216
B.2 Conference of the Parties (COP13)
The Convention Dialogue, installed in Montreal, came to a formal close when the COP “took
note” of the report of the co-facilitators.217 Negotiations on long-term cooperative action were
clearly essential to the Parties in Bali. Regarding the nature of the process in which these
negotiations should occur, different proposals were submitted. Eventually, the most favoured
option was formalizing the UNFCCC process under an AWG while keeping the negotiations
on the Kyoto Protocol under a separate track.218 Consequently, the COP established the “Ad
Hoc Working Group on Long-term Cooperative Action under the Convention” within the Bali
Action Plan.219
214
See supra note 197.
UNFCCC, Decision 4/CMP.3, Scope and content of the second review of the Kyoto Protocol
pursuant to its Article 9, in Report of the Conference of the Parties serving as the meeting of the Parties
to the Kyoto Protocol on its third session, held in Bali from 3 to 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) (hereinafter: Decision
4/CMP.3), §6.
216
Decision 4/CMP.3, supra note 215, §3.
217
UNFCCC, Report on the dialogue on long-term cooperative action to address climate change by
enhancing implementation of the Convention, FCCC/CP/2007/4, (19 October 2007); L. RAJAMANI,
“From Berlin to Bali and Beyond: Killing Kyoto Softly?”, ICLQ 2008, vol. 57, (909) (hereinafter: L.
RAJAMANI, From Berlin to Bali and Beyond), 913.
218
ENB Thirteenth Conference, supra note 192, 15.
219
UNFCCC, Decision 1/CP.13, Bali Action Plan, in Report of the Conference of the Parties on its
thirteenth session held in Bali from 3 to 15 December 2007, Addendum Part Two: Action taken by the
Conference of the Parties at its thirteenth session, FCCC/CP/2007/6/Add.1, (14 March 2008),
(hereinafter: Bali Action Plan).
215
42
The Bali Action Plan, which sets an ambitious framework for the negotiations of a post-2012
regime, contained an outline for the negotiations under this working group220, and a deadline
for presenting its outcome in 2009.221
The AWG-LCA’s mandate focused on the key elements of long-term cooperation identified
during the Convention Dialogue conducted from the Montreal COP onwards: mitigation,
adaptation, finance and technology and capacity building. In general, this working group under
the Convention had to engage in a comprehensive process to “enable the full, effective and
sustained implementation of the Convention through long-term cooperative action, now, up to
and beyond 2012, in order to reach an agreed outcome and adopt a decision at its fifteenth
session” (emphasis added).222 The usage of the term ‘an agreed outcome’ reflects a lack of
agreement on two points: on the legal form that the outcome should take and on the level of
ambition of this outcome.223 Eventually, the subsequent phrase “and adopt a decision” can
indicate that the outcome should be a COP decision. However, the counterargument is easily
made, as a COP decision can adopt a Protocol, include it in an annex to the decision, and then
220
Bali Action Plan, supra note 219, § 3- 4 & Annex: Indicative timetable.
Bali Action Plan, supra note 219, §2.
222
Bali Action Plan, supra note 219, §1.
223
L. RAJAMANI, “Addressing the “Post-Kyoto” Stress Disorder: Reflections on the Emerging Legal
Architecture of the Climate Regime”, ICLQ 2009, vol. 58, 803 (hereinafter: L. RAJAMANI, “Addressing
the “Post-Kyoto” Stress Disorder), 805; L. RAJAMANI, From Berlin to Bali and Beyond, supra note
217, 918; B. MÜLLER et al., Unilateral Declarations, supra note 161, 1; L. RAJAMANI, “The
Copenhagen Agreed Outcome: Form, Shape & Influence”, Centre for Policy Research Climate Brief
2009,
http://www.cprindia.org/sites/default/files/1259569856-CPR%20Polic%20Brief2.pdf,
(1)
(hereinafter: L. RAJAMANI, The Copenhagen Agreed Outcome), 1; D. BODANSKY, Legal Form of a
New Climate Agreement, supra note 210, 2.
221
43
invite Parties to ratify it.224 The majority agrees that the phrase “and adopt a decision” does not
restrict the legal form of the outcome.225
Parties agreed to consider: (i) Measurable, reportable and verifiable nationally appropriate
mitigation commitments or actions, including quantified emission limitation and reduction
objectives, by all developed country Parties, while ensuring the comparability of efforts
among them, taking into account differences in their national circumstances; and
(ii)Nationally appropriate mitigation actions (NAMAs) by developing country Parties in the
context of sustainable development, supported and enabled by technology, financing and
capacity-building, in a measurable, reportable and verifiable manner.226
The obvious similarities between the two provisions enabled “the US to claim that their
demand for equal treatment was sufficiently respected”, while on the other hand, the equally
obvious differences allowed “the BASIC countries to claim that differentiated treatment was
sufficiently retained.”227
Some parts within these two provisions deserve specific attention. First of all, the difference in
wording between commitments and actions is the core of the compromise between developed
and developing nations.228 Developed countries can turn to commitments or actions, while
developing countries agreed to consider actions alone. ‘Actions’ can include a broad spectrum
of measures, taxes, targets,… This option for developing countries is thus less stringent than
224
This is exactly how the Kyoto Protocol was adopted: UNFCCC, Decision 1/CP.3, Adoption of the
Kyoto Protocol to the United Nations Framework Convention on Climate Change, in Report of the
Conference of the Parties on its Third Session, held at Kyoto, from 1 to 11 December 1997, Addendum,
Part Two, Action Taken by the Conference of the Parties, FCCC/CP/1997/7/Add.1, (25 March 1998);
L. RAJAMANI, “Addressing the “Post-Kyoto” Stress Disorder, supra note 223, 805.
225
UNFCCC, Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action
under the Convention, Draft conclusions proposed by the Chair, FCCC/AWGLCA/2009/L.7/Rev.1, (16
December 2009) (hereinafter: AWG-LCA, Draft conclusions proposed by the Chair), §1: “This is
without prejudice to the possible form and legal nature of the agreed outcome to be adopted by the
COP under the Bali Action Plan”; D. BODANSKY, Legal Form of a New Climate Agreement, supra
note 210, 2; L. RAJAMANI, “Addressing the “Post-Kyoto” Stress Disorder, supra note 223, 805; TWN
(ed.), “Form follows Function A note on the legal form of the Bali Action Plan outcome”, TWN
Briefing
Paper
2010,
http://www.twnside.org.sg/title2/climate/briefings/cancun01/TWN.BP.Cancun01.pdf.
226
Bali Action Plan, supra note 219, §1 (b) (emphasis added).
227
B. MÜLLER et al., Unilateral Declarations, supra note 161, 4.
228
B. MÜLLER et al., Unilateral Declarations, supra note 161, 4; J. WERKSMAN, K. HERBERTSON, The
Legal Character of National Actions, supra note 34, 14.
44
that of developed nations, who are to consider commitments.229 Why then does the paragraph
on developed countries mention commitments or actions? Some developed countries refused
to commit to internationally binding emission targets, and insisted that ‘actions’ were included
as well.
This touches upon the second issue: the phrase “while ensuring the comparability of efforts
between them”. This phrase was presumably included to counter the unwillingness of certain
Annex I Parties to commit themselves to ‘commitments’. While countries agreed to
‘commitments or actions’ for developed countries, they entered the requirement of
comparability to ensure that the ‘actions’ would be in aggregate similar to the made
‘commitments’.230 The vagueness of the terms is notable. What exactly is meant by
‘comparability’, and by ‘efforts’? The latter can be understood to refer solely to the striving
towards a goal, rather than the actual achievement of it. Despite the unclear wording, it is
likely that the common understanding between Parties was that all developed countries should
make an honest, fair contribution.231
Third, the decision on the AWG-LCA speaks for the first time of ‘developed’ and ‘developing’
nations, rather than of Annex I and non-Annex I Parties.232 The paragraph on developing
country action does not differentiate between the developing countries, but it does not preclude
this possibility either.233 As noted supra, the UNFCCC and the Kyoto Protocol had formalized
a division between Annex I and non-Annex I Parties. Many believed that this distinction was
rigid to say the least, and even referred to as a ‘firewall’ by some.234 This change to ‘developed
and developing nations’ was widely regarded as a breakthrough, providing the prospect of
“moving beyond the constraints of working within only Annex I and non-Annex I Parties
229
J. BOSTON, “Framing a Post-2012 Climate Change Agreement: The Quest for ‘Comparability of
Efforts’”, Policy Quarterly 2008, vol.4, (40) (hereinafter: J. BOSTON, The Quest for ‘Comparability of
Efforts’), 41.
230
J. BOSTON, The Quest for ‘Comparability of Efforts’, supra note 229, 41.
231
J. BOSTON, The Quest for ‘Comparability of Efforts’, supra note 229, 43.
232
Bali Action Plan, supra note 219, §1 (b); L. RAJAMANI, Differentiation in the Post-2012 Climate
Regime, supra note 56, 48.
233
J. DEPLEDGE, “Crafting the Copenhagen Consensus: Some Reflections”, RECIEL 2008, vol.17,
(154) (hereinafter: J. DEPLEDGE, Crafting the Copenhagen Consensus), 158.
234
J. DEPLEDGE, The Opposite of Learning, supra note 83, 9; D. BODANSKY, “The Copenhagen
Climate Change Conference - A Post-Mortem”, AJIL 2010, vol. 104, (1) (hereinafter: D. BODANSKY, A
post-mortem), 4.
45
when defining future contributions to a future agreement”.235 In particular, this was seen as a
major concession of developing nations, since they agreed to at least negotiate possible
mitigation actions under a post-Kyoto regime.236 Nonetheless, many developing nations argued
that the Bali Action Plan maintained the ‘firewall’, since the Bali Action Plan exactly uses
distinct formulations for developed and developing country commitments, respectively
actions.237 On the bright side, the Bali Action Plan entails mitigation actions or commitments
from all countries, developed and developing. As a whole, this is a more comprehensive and
environmentally effective approach.238
C. COPENHAGEN CONFERENCE (2009)
During the Copenhagen Conference, negotiators were supposed to reach a final decision on the
two-year negotiating process, established under the Bali Roadmap.239 In the end, the talks
resulted in not more than a political agreement,240 named the “Copenhagen Accord”. The
235
ENB Thirteenth Conference, supra note 192, 19; See also: J. BRUNNÉE, From Bali to Copenhagen,
supra note 21, 101; J. DEPLEDGE, Crafting the Copenhagen Consensus, supra note 233, 160; T.
HONKONEN, The Principle of Common But Differentiated Responsibility, supra note 51, 263.
236
D.B. HUNTER, International Climate Negotiations, supra note 208, 257; K. MICKELSON, “Beyond a
Politics of the Possible? South-North Relations and Climate Justice”, Melbourne JIL 2009, vol. 10,
(411) 414; Z. ZHANG, “How far can developing country commitments go in an immediate post-2012
climate regime?”, Energy Policy 2009, (1753) 1753.
237
C. SMITH, ‘The Bali Firewall and Member States’ Future Obligations within the Climate Change
Regime’, LEAD Journal 2010, (284) 286; L. RAJAMANI, The “Cloud” over the Climate Negotiations:
From Bangkok to Copenhagen and Beyond, Centre for Policy Research 2009,
http://www.cprindia.org/sites/default/files/1256103508-CPR%20Polic%20Brief_0.pdf, (1) 2.
238
T. HOUSER, Copenhagen, the Accord, and the Way Forward, supra note 172, 2.
239
ENB Copenhagen Conference, supra note 81, 1; This Conference was characterized by an
unprecedented public and media attention- as close to 30 000 people attended it; according to the
UNFCCC Secretariat: http://unfccc.int/meetings/cop_15/items/5257.php.
240
See infra: 4.C.2.3: Legal Status.
46
Copenhagen Accord did not originate in the work developed by either one of the AWGs.241
Many perceived the Accord as a complete failure.242
C.1 Meeting of the Parties (CMP5)
Within the AWG-KP, Parties were unable to reach an agreement on amendments to the
Protocol. In its decision, the CMP requested the AWG-KP to deliver the result of its work
(pursuant to decision 1/CMP.1) for adoption by the CMP at its sixth session in Cancun; and to
continue its work drawing on the draft text forwarded after the Copenhagen conference.243
C.2 Conference of the Parties (COP15)
Within the COP, five draft protocols (from Japan, Tuvalu, Australia, Costa Rica and the US)
were submitted to the agenda, in accordance with the six-month rule.244 As in the end, no
consensus was reached, these draft protocols were referred to the next COP.
241
ENB Copenhagen Conference, supra note 81, 1; D. BODANSKY, “The Evolution of Multilateral
Regimes: Implications for Climate Change”, Pew Center on Global Climate Change 2010,
http://www.pewclimate.org/docUploads/evolution-multilateral-regimes-implications-climatechange.pdf, (1) (hereinafter: D. BODANSKY, The Evolution of Multilateral Regimes), 15.
242
Or as briefly put: “When negotiations failed, priority switched from saving the world to saving
face”: R. S. DIMITROV, Inside UN Climate Change Negotiations, supra note 210, 808; E. BURLESON,
Climate Change Consensus: Emerging International Law, ELPR 2010, vol. 34, (543) (hereinafter: E.
BURLESON, Climate Change Consensus), 551; N. K. DUBASH, “Copenhagen: Climate of Mistrust”,
Economic and Political Weekly 2009, vol. 44, (8-11); EURACTIV (ed.), “EU looks beyond 'weak'
Copenhagen climate deal”, (19 December 2009), http://www.euractiv.com/en/climate-change/eulooks-weak-copenhagen-climate-deal/article-188501.
243
UNFCCC, Decision 1/CMP.5, Outcome of the work of the Ad Hoc Working Group on Further
Commitments for Annex I Parties under the Kyoto Protocol, in Report of the Conference of the Parties
serving as the meeting of the Parties to the Kyoto Protocol on its fifth session, held in Copenhagen
from 7 to 19 December 2009, Addendum Part Two: Action taken by the Conference of the Parties
serving as the meeting of the Parties at its fifth session, FCCC/ KP/CMP/2009/21/Add.1, (30 March
2010) (hereinafter: Decision 1/CMP.5).
244
UNFCCC, Draft protocol to the Convention prepared by the Government of Japan for adoption at
the fifteenth session of the Conference of the Parties, FCCC/CP/2009/3, (13 May 2009); UNFCCC,
Draft protocol to the Convention presented by the Government of Tuvalu under Article 17 of the
Convention, FCCC/CP/2009/4, (5 June 2009); UNFCCC, Draft protocol to the Convention prepared by
the Government of Australia for adoption at the fifteenth session of the Conference of the Parties,
FCCC/CP/2009/5, (6 June 2009); UNFCCC, Draft protocol to the Convention prepared by the
Government of Costa Rica to be adopted at the fifteenth session of the Conference of the Parties,
FCCC/CP/2009/6, (8 June 2009); UNFCCC, Draft implementing agreement under the Convention
prepared by the Government of the United States of America for adoption at the fifteenth session of the
Conference of the Parties, FCCC/CP/2009/7, (6 June 2009).
47
The AWG-LCA presented the result of its work done in 2009.245 The working group’s chair
stressed that the text forwarded did not prejudice the legal nature of the outcome to be adopted
by the COP.246 During the AWG, several open-ended drafting groups were established. In the
end, most drafting groups had not achieved much progress and stressed that political guidance
was necessary to reach an agreement.247 The COP decided to extend the mandate of the AWGLCA, to enable it to present the outcome of its work at the sixteenth session of the COP.248
C.3 The Copenhagen Accord
With one day left, and little to no progress made in the two AWGs,249 a group of about 30
countries drafted the Copenhagen Accord. This agreement between large developing countries
(Brazil, China, India, South-Africa), some EU-countries, the US and representations from
vulnerable country groups originally faced resistance from several countries. Discussions arose
mainly on the lack of transparency of the process.250 However, the developed countries and
most of the developing countries, spokespersons for the LDCs and AOSIS in the end urged
COP15 to adopt the Copenhagen Accord.251 In turn, the content of the Accord and its legal
status will be examined.
C.3.1 Content
The negotiating Parties managed to agree on certain issues that are of importance for the post2012 legal architecture. Parties first of all reconfirmed that they pursue the ultimate objective
245
AWG-LCA, Draft conclusions proposed by the Chair, supra note 225.
ENB Copenhagen Conference, supra note 81, 4.
247
ENB Copenhagen Conference, supra note 81, 6.
248
UNFCCC, Decision 1/CP.15, Outcome of the work of the Ad Hoc Working Group on Long-term
Cooperative Action under the Convention, in Report of the Conference of the Parties on its fifteenth
session, held at Copenhagen from 7 to 19 December 2009, Addendum Part Two: Action taken by the
Conference of the Parties at its fifteenth session, FCCC/CP/2009/11/Add.1, (30 March 2010)
(hereinafter: Decision 1/CP.15).
249
J. BALL, S. POWER and G. CHAZAN, “Divisions Persist On Core Questions As Leaders Arrive”, Wall
Street Journal (16 December 2009), http://online.wsj.com/article/SB126088020911291961.html; E.
BURLESON, Climate Change Consensus, supra note 242, 552; T. HOUSER, Copenhagen, the Accord,
and the Way Forward, supra note 172, 10; B. MÜLLER, “Copenhagen 2009- Failure or final wake-up
call for our leaders?”, European Capacity Building Initiative 2010, (i) (hereinafter: B. MÜLLER,
Copenhagen 2009), ii.
250
Some developing countries characterized the formation of the Accord as ‘untransparent’ and
‘undemocratic’: ENB Copenhagen Conference, supra note 81, 8; B. MÜLLER, Copenhagen 2009, supra
note 249, 9.
251
ENB Copenhagen Conference, supra note 81, 29.
246
48
of the Convention. They expressed their strong political will to urgently combat climate
change in accordance with the principle of common but differentiated responsibilities and
respective capabilities. This reference to the CDR principle reaffirms the importance of it in
the climate change regime.252
Subsequently, Parties officially recognized the IPCC’s findings to interpret the Convention’s
objective. They agreed that deep cuts in emissions would have to be made to stay in line with
the scientific view, as documented by the IPCC in its Fourth Assessment Report, to hold the
increase in global temperature below 2 degrees Celsius.253 According to some, it is only here
that the ultimate objective of the UNFCCC is interpreted so concretely.254 Although it has been
going around for several years already now, this 2°C- threshold is not uncontested. When
examining exactly where this threshold comes from, some suggest that mainstream media,
policy makers and NGOs rather arbitrarily interpreted climate science to legitimate the
adoption of a two-degree target.255 They submit that when scientists commented on the
‘dangerous’ limit (generally opposing to do so; as they claim this is not a science, but a policy
issue), it was mostly to suggest that 2°C is more than could be considered safe.256
To achieve the “deep cuts in global emissions,” the Copenhagen Accord contains
commitments, distinct for Annex-I and non-Annex I Parties.257 Annex I Parties commit to
implement quantified emissions targets for 2020, which will be listed in an INF document.258
The delivery of those targets will be measured, reported and verified in accordance with
252
J. BRUNNÉE, From Bali to Copenhagen, supra note 21, 93.
UNFCCC, Decision 2/CP.15, Copenhagen Accord, in Report of the Conference of the Parties on its
fifteenth session, held at Copenhagen from 7 to 19 December 2009, Addendum Part Two: Action taken
by the Conference of the Parties at its fifteenth session, FCCC/CP/2009/11/Add.1, (30 March 2010)
(hereinafter: Copenhagen Accord), 5, §2; J. CURTIN, “The Copenhagen Conference: How Should the
EU
Respond?”,
Institute
of
International
and
European
Affairs
2010,
http://www.iiea.com/publications/the-copengahen-conference-how-should-the-eu-respond, (1) 4.
254
J. BRUNNÉE, From Bali to Copenhagen, supra note 21, 90.
255
C. SHAW, “The dangerous limits of dangerous limits: climate change and the precautionary
principle”, The Sociological Review 2009, 103-123.
256
Ibid; M.B. GERRARD and D. AVGERINOPOULOU, “Development and the future of climate change
law” in D. LEARY and B. PISUPATI (eds.), The future of international environmental law, New York,
United Nations University Press, 2010, (149) 153; A. GIDDENS, The politics of climate change,
Cambridge, Polity Press, 2009, 27.
257
Where in Bali the rigid distinction between Annex I and non-Annex I Parties was softened, it was
brightly present in the Copenhagen Accord: J. BRUNNÉE, From Bali to Copenhagen, supra note 21,
104.
258
Copenhagen Accord, supra note 253, §4.
253
49
existing and future guidelines by the COP. This method of commitments is a radically different
approach than the one of the Kyoto Protocol. The system of Kyoto could be described as a topdown system, with internationally binding emission reduction targets and timetables. The
Copenhagen Accord takes the form of a bottom-up approach, allowing each Party to determine
its own target, base year and accounting rules.259
Non-Annex I Parties will implement “mitigation actions”, the so-called NAMAs first
mentioned in the Bali Action Plan,260 which will also be listed in an INF document.261 Similar
to the Annex I emission targets, the mitigation actions by non-Annex I parties are installed
within a bottom-up approach, allowing each Party to define its own commitment. It is the first
time in the climate change negotiations that developing countries agree to internationalize their
commitments.262 Furthermore, within the group of non-Annex I Parties, some differentiation
appears. Whereas in general, non-Annex I Parties “will” implement mitigation action; least
developed countries and small island developing States “may” undertake actions voluntarily
and on the basis of support.263 The Communications of the Parties included in the Information
Document to the Secretariat are communications in the sense of article 12.1 (b) UNFCCC.
Consensus was also reached in the field of international review of these mitigation actions.
NAMAs of developing countries that receive international support “will be subject to
international measurement, reporting and verification in accordance with guidelines adopted
259
For example: the US committed to a reduction “In the range of 17%” by 2020, with 2005 as base
year:
http://unfccc.int/files/meetings/cop_15/copenhagen_accord/application/pdf/unitedstatescphaccord_app.
1.pdf; the EU committed to a reduction of 20%, or 30% (conditional upon a global and comprehensive
agreement in which other developed countries commit to comparable emission reductions and
developing
countries
contribute
adequately)
with
the
base
year
of
1990:
http://unfccc.int/files/meetings/cop_15/copenhagen_accord/application/pdf/europeanunioncphaccord_a
pp1.pdf.
260
See supra, p. : Bali Action Plan, supra note 219 §1 (b).
261
Ibid, §5; For example, China will endeavor to lower its carbon dioxide emissions per unit of GDP by
40-45% by 2020 compared to the 2005 level, increase the share of non-fossil fuels in primary energy
consumption to around 15% by 2020 and increase forest coverage by 40 million hectares and forest
stock volume by 1.3 billion cubic meters by 2020 from the 2005 levels:
http://unfccc.int/files/meetings/cop_15/copenhagen_accord/application/pdf/chinacphaccord_app2.pdf,
India will endeavor to reduce the emissions intensity of its GDP by 20-25% by 2020 in comparison to
the
2005
level:
http://unfccc.int/files/meetings/cop_15/copenhagen_accord/application/pdf/indiacphaccord_app2.pdf.
262
D. BODANSKY, A post-mortem, supra note 234, 10; J. BRUNNÉE, From Bali to Copenhagen, supra
note 21, 102.
263
Copenhagen Accord, supra note 253, §5.
50
by the COP”. NAMAs that do not receive such support will be subject to domestic
measurement, reporting and verification, reported in national communications, with provisions
for “international consultation and analysis under clearly defined guidelines that will ensure
that national sovereignty is respected”.264 The delivery of reductions and financing by
developed countries will be measured, reported and verified in accordance with existing and
any further guidelines adopted by the Conference of the Parties.265
On the other hand, the Accord fails to provide clarity on the future of the Kyoto Protocol, and
it leaves open whether the Accord will be transformed into a legal instrument.266 The reference
demanding for a new “legally binding instrument” to be completed at the COP’s next
conference in Mexico, was deleted from the final version of the COP decision accompanying
the Accord.267 The Accord so far only installs a voluntary system of pledges, but with a clear
2° C goal. It implies a need to reconcile the two.268 However, the pledges made so far will not
be sufficient to reach the goal of the Accord.269
264
Ibid, §5.
Ibid, § 4.
266
The Preamble, “Affirming our firm resolve to adopt one or more legal instruments” was killed off
during the day: J. WATTS, “What was Agreed At Copenhagen: And What Was Left Out”, The
Guardian (19 December 2009), http://www.guardian.co.uk/environment/2009/dec/18/how-copenhagentext-was-changed.
267
D. BODANSKY, A Post-Mortem, supra note 234, 8.
268
M. GRUBB, “Copenhagen: back to the future?”, Climate Policy 2010, vol. 10, (127) 128.
269
UNEP (ed.), “The Emissions Gap Report- Are the Copenhagen Accord Pledges Sufficient to Limit
Global
Warming
to
2°C
or
1.5°C?”,
November
2010,
http://www.unep.org/publications/ebooks/emissionsgapreport/pdfs/The_EMISSIONS_GAP_REPORT.
pdf, (1-59); OECD (ed.), “Costs and Effectiveness of the Copenhagen Pledges: Assessing global
greenhouse
gas
emissions
targets
and
actions
for
2020”,
http://www.oecd.org/dataoecd/6/5/45441364.pdf, (1-8); S. GOLDENBERG, J. VIDAL and J. WATTS,
“Leaked UN report show cuts offered at Copenhagen would lead to 3C rise”, The Guardian (17
December 2009), http://www.guardian.co.uk/environment/2009/dec/17/un-leaked-report-copenhagen3c; According to Ban Ki-moon, the terms do not meet the “scientific bottom line”: N. GRONEWOLD,
“U.N. Chief Declares Climate Accord ‘Significant Achievement’”, New York Times (21 December
2009),
http://www.nytimes.com/gwire/2009/12/21/21greenwire-un-chief-declares-climate-accordsignificant-a-24845.html.
265
51
C.3.2 Legal status
As stated preliminary, the Copenhagen Accord is a purely politically binding document, that
does not entail legally binding obligations.270 When the Accord was introduced for adoption in
the COP, six countries formally opposed its adoption as a COP decision.271 Since the adoption
of such decisions requires consensus272, the Accord could not be adopted. Finally, there was
little other choice for the COP than to ‘take note of’273 the document.
Because the COP did not adopt nor endorse the Accord, “its provisions do not have any legal
standing within the UNFCCC process even if some Parties decide to associate themselves with
it.”274 As this document is ‘outside’ the formal legal structure, the future status of it is now
unclear.275 According to Yvo de Boer, former head of the UNFCCC Secretariat, the legal
status of the Copenhagen Accord is comparable to a letter of intent.276
270
UNFCCC, Executive Secretary, Bonn, Notification to Parties: Clarification to the Notification of 18
January 2010, (25 January 2010): “the Accord is a political agreement, rather than a treaty instrument
subject to signature”; LEGAL RESPONSE INITIATIVE (ed.), “The Copenhagen Accord- A Legal
Analysis”,
(28
January
2010),
http://www.legalresponseinitiative.org/download/The%20Copenhagen%20Accord%20%20A%20Legal%20Analysis%20(28%20January%202010).pdf (hereinafter: LRI, The Copenhagen
Accord), p. 6; C. P. CARLARNE, Climate Change Law and Policy: EU and US Approaches, Oxford,
Oxford University Press, 2010, 356.
271
Tuvalu, Bolivia, Nicaragua, Cuba, Venezuela and Sudan.
272
See supra, explanation COP.
273
In the annex to Decision 55/488 of the GA, the GA reiterates that the terms "takes note of" and
"notes” are neutral terms that constitute neither approval nor disapproval”; UNFCCC Secretary-General
Y. De Boer: “it is a way of recognizing that something is there, but not going so far as to associate
yourself with it.” in J. WERKSMAN, “Taking Note” of the Copenhagen Accord: What it Means”, World
Resources Institute 2009, http://www.wri.org/stories/2009/12/taking-note-copenhagen-accord-what-itmeans (hereinafter: J. WERKSMAN, “Taking Note” of the Copenhagen Accord); LEGAL RESPONSE
INITIATIVE (ed.) “Climate Change Treaty Negotiations, Legal Queries received by the LRI”, (2
November 2009), on file with author (hereinafter: LRI: Climate Change Treaty Negotiations Queries),
27.
274
UNFCCC, Executive Secretary, Bonn, Notification to Parties: Clarification to the Notification of 18
January 2010, (25 January 2010).
275
T. HOUSER, Copenhagen, the Accord, and the Way Forward, supra note 172, 14; D. BODANSKY, A
Post-Mortem, supra note 234, 1; C. EGENHOFER and A. GEORGIEV, “The Copenhagen Accord- A first
stab at deciphering the implications for the EU”, Centre for European Policy Studies 2009,
http://www.ceps.eu/book/copenhagen-accord-first-stab-deciphering-implications-eu, (1) 3.
276
A. DOYLE and G. WYNN, “U.N. climate talks end with bare minimum agreement”, Reuters (20
December
2009),
http://www.reuters.com/article/2009/12/20/us-climate-copenhagenidUSGEE5BB07F20091220.
52
The drafters of the Copenhagen Accord assumed that it would be adopted as a COP
decision.277 After it became clear that the COP would not be able to adopt it, however, the
Accord was not redrafted to ensure that it could be operationalized independently of the
UNFCCC process.278 As a result, the Copenhagen Accord is neither fish nor fowl: “It is neither
a decision adopted by the COP that can be operationalized through the FCCC institutional
architecture and draw on the existing normative corpus, nor is it an independent plurilateral
agreement with its own operational architecture and normative core.” 279 Although the Accord
claims to be “operational immediately”, this cannot be true for the whole text. Only provisions
that do not require elaboration through COP decisions can be immediately operational.280
The uncertain legal status of the Copenhagen Accord implies several legal challenges. Much
debated is the extent to which the UNFCCC Secretariat can facilitate the implementation of the
Copenhagen Accord. On 30 December 2009, Denmark “in its capacity as COP15 Presidency”
and the UN Secretary General circulated a note verbale to the Missions in New York.281
Parties were urged to ‘associate’ themselves with the Accord and to submit information to the
UNFCCC Secretariat on their respective mitigation commitments and nationally appropriate
mitigation actions - a procedure without precedent under the UNFCCC.282 Cuba immediately
challenged the UNFCCC Secretariat’s authority to compile submissions under the Copenhagen
Accord.283 It argued that the COP had not mandated the Secretariat to do so.284 Moreover, as
277
We can derive this from the wording of the Accord which contains several references to the COP
and from earlier versions of the document that were indicated with an FCCC document number.
278
L. RAJAMANI, “Neither fish nor fowl”, in Climate Change Conundrum (February 2010),
http://www.india-seminar.com/2010/606/606_lavanya_rajamani.htm (hereinafter: L. RAJAMANI,
Neither fish nor fowl).
279
Ibid.
280
For example, the Accord establishes a “Copenhagen Green Climate Fund” to manage the financial
pledges made in Copenhagen. This entity will need to be elaborated by further COP decisions before
becoming operational: J. WERKSMAN, “Taking Note” of the Copenhagen Accord, supra note 273; L.
RAJAMANI, Neither fish nor fowl, supra note 277.
281
This was repeated by the UNFCCC Executive Secretary: UNFCCC, Executive Secretary, Bonn,
Notification to Parties: Communication of information relating to the Copenhagen Accord, (18 January
2010).
282
ENB Copenhagen Conference, supra note 81, 29.
283
D. BODANSKY, A Post-Mortem, supra note 234, 9.
284
“The appeal you have launched to the parties to the convention for them to associate with the so
called Copenhagen Accord, as well as the legal character ascribed to said accord, are a gross violation
of the mandate vested upon you as executive secretary to the convention”: GREEN LEFT (ed.), “Cuba:
Copenhagen has no legitimacy”, (5 February 2010), http://www.greenleft.org.au/node/43151,
(including Cuban letter to the Executive Secretary of the UNFCCC).
53
some states had expressly rejected the Accord, and it would thus be “outside” the UNFCCC
process, Cuba questioned the authority of the Danish presidency to open the accord for
signature in the first place.285
As noted, 31 January 2010 marked the deadline for Parties to submit their respective targets
for reducing GHG emissions to the UNFCCC Secretariat.286 The UNFCCC Secretariat has
indicated this is not a hard deadline.287
D. CANCUN CONFERENCE (2010)
Since in Copenhagen, Parties could neither agree on the long-term cooperation under the
Convention, nor on the continuation of the Protocol, this two-track negotiating process
continued in Cancun. The mandates of the two Ad Hoc Working Groups had been extended
for that purpose by the COP and CMP decisions in Copenhagen.288 The Cancun Conference
resulted in the “Cancun Agreements”. The Agreements contained decisions on adaptation,
technology, mitigation, finance and on the two negotiating tracks.289
D.1 Meeting of the Parties (CMP6)
The AWG-KP was unable to reach an agreement on amendments to the Protocol. The UG
opposed new commitments if these were not part of a comprehensive outcome, including the
work under the AWG-LCA. The EU was willing to commit to a second commitment period
under the Kyoto Protocol, if such period was part of an outcome that engaged all major
economies. The G-77 on the other hand stressed the need to adopt this second commitment
period fast, to avoid a gap between periods.290 Within the Cancun Agreements, the CMP
merely agreed that the AWG-KP shall “aim” to complete its work and report to the CMP “as
285
SOUTH CENTRE (ed.), “South Centre's Comments on the Copenhagen Accord: Contents and Legal
Aspects”,
(18
January
2010),
http://www.southcentre.org/index.php?option=com_content&task=view&id=1236&Itemid=287.
286
For an up-to-date overview of national submissions related to the Copenhagen Accord, see US
CLIMATE ACTION NETWORK (ed.), “Who’s on Board the Copenhagen Accord”,
http://www.usclimatenetwork.org/policy/copenhagen-accord-commitments. As of April 2011, the UN
Secretariat received submissions from more than 140 Parties to the UNFCCC, 8 countries declared they
will not engage: Bolivia, Tuvalu, Cook Islands, Venezuela, Ecuador, Kuwait, Cuba, Nauru.
287
LRI, The Copenhagen Accord, supra note 270, 8.
288
Decision 1/CMP.5, supra note 243, Decision 1/CP.15, supra note 248.
289
ENB Cancun Conference, supra note 81, 1.
290
ENB Cancun Conference, supra note 81, 12.
54
soon as possible”, and “in time to ensure there is no gap between the first and second
commitment periods”.291 Nonetheless, substantial agreements were concluded in the areas of
land use, land use change and forestry.
D.2 Conference of the Parties (COP16)
The COP considered proposals under article 17 UNFCCC from several parties. The five draft
protocols were transferred from Copenhagen, and one new proposal was received from
Grenada.292 Parties were unable to reach an agreement, as many differences remained on what
the legal form of the AWG-LCA’s outcome must be.293
D.3 Cancun Agreements
The Cancun Agreements are the main outcome from COP 16 and CMP 6.
The COP first of all emphasizes that nothing in its decision shall prejudge prospects for, or the
content of, a legally binding outcome in the future.294 Its decision covers all main elements
identified in the Bali Action Plan, namely: a shared vision for long-term cooperative action,
adaptation, mitigation, finance, technology and capacity building.295 On long-term cooperative
action, the COP decision reiterates parts of the Copenhagen Accord, amongst others: Parties
recognize “that deep cuts in global greenhouse gas emissions are required according to
science, and as documented in the Fourth Assessment Report of the Inter- governmental Panel
on Climate Change, with a view to reducing global greenhouse gas emissions so as to hold the
increase in global average temperature below 2 °C above pre- industrial levels, and that Parties
291
UNFCCC, Decision 1/CMP.6, The Cancun Agreements: Outcome of the work of the Ad Hoc
Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its fifteenth
session, in Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto
Protocol on its sixth session, held in Cancun from 29 November to 10 December 2010, Addendum Part
Two: Action taken by the Conference of the Parties serving as the meeting of the Parties to the Kyoto
Protocol at its sixth session, FCCC/KP/CMP/2010/12/Add.1, (15 March 2011) (hereinafter: Cancun
Agreements CMP), §1.
292
UNFCCC, Proposed protocol to the Convention submitted by Grenada for adoption at the sixteenth
session of the Conference of the Parties, FCCC/CP/2010/3, (2 June 2010).
293
ENB Cancun Conference, supra note 81, 4.
294
UNFCCC, Decision 1/CP.16, The Cancun Agreements: Outcome of the work of the Ad Hoc Working
Group on Long-term Cooperative Action under the Convention, in Report of the Conference of the
Parties on its sixteenth session, held at Cancun from 29 November to 10 December 2010, Addendum
Part Two: Action taken by the Conference of the Parties at its sixteenth session,
FCCC/CP/2010/7/Add.1, (15 March 2011) (hereinafter: Cancun Agreements COP), Preamble.
295
Cancun Agreements COP, supra note 294.
55
should take urgent action to meet this long-term goal, consistent with science and on the basis
of equity”. The COP consequently took note of the quantified economy-wide emission
reduction targets to be implemented by Parties included in Annex I to the Convention as
communicated by them296 and of NAMAs to be implemented by Parties not included in Annex
I to the Convention as communicated by them297. These pledges are now “anchored” within the
UNFCCC process, and although not legally binding, this them a greater legal weight.298
The CMP for its part also took note of the emission reduction targets communicated by the
Annex I Parties and moreover, urged Annex I Parties to raise the level of ambition of the
emission reductions to be achieved by them, with a view to reducing their aggregate level of
emissions of greenhouse gases in accordance with the range indicated by Working Group III to
the Fourth Assessment Report of the Intergovernmental Panel on Climate Change.299
To ensure the continuation of the work, both the COP and CMP decisions contain provisions
on the AWGs. The COP extended the mandate of the AWG-LCA for one year to continue its
work and present its result at COP 17. It requested the AWG-LCA to do so, drawing on the
documents under its consideration at the time, and to continue to discuss legal options with the
aim of completing an agreed outcome based on the Bali Action Plan.300 The CMP for its part
concluded that the AWG-KP must aim to complete its work and have its result adopted by the
CMP “as early as possible and in time to ensure that there is no gap between the first and
second commitment periods”.301
The Cancun Agreements were adopted as COP/CMP decisions, although Bolivia had formally
opposed the decisions. It declared the decisions to be a step backwards, as they postpone a
296
Cancun Agreements COP, supra note 294: Operative text, III A, §36: contained in document
FCCC/SB/2011/INF.1, Compilation of economy-wide emission reduction targets to be implemented by
Parties included in Annex I to the Convention.
297
Cancun Agreements COP, supra note 294: Operative text, III A, § 49: contained in document
FCCC/AWGLCA/2011/INF.1, Compilation of information on nationally appropriate mitigation actions
to be implemented by Parties not included in Annex I to the Convention.
298
D. BODANSKY, The Evolution of Multilateral Regimes, supra note 241, 17.
299
Cancun Agreements CMP, supra note 291, Operative text § 3-4.
300
Cancun Agreements COP, supra note 294: Operative text, VII, Extension of the Ad Hoc Working
Group on Long-term Cooperative Action under the Convention.
301
Cancun Agreements CMP, supra note 291, Operative text §1; The reference to the aim of avoiding a
gap between commitment periods was a compromise, as it tries to offer some reassurance to parties
supporting a second commitment period: ENB Cancun Conference, supra note 81, 29.
56
decision on a second commitment period under the Kyoto Protocol “indefinitely”.302 After the
adoption, Bolivia reiterated its opposition, repeating the lack of consensus as required under
the rules of procedure. The CMP President thereto replied that “consensus requires that
everyone is given the right to be heard and have their views given due consideration (…)
Consensus does not mean that one country has the right of veto”, and that she “cannot
disregard the position and requests of 193 parties”.303
Can we draw some conclusions from these Agreements? The Cancun Agreements, in
‘confirming’ the Copenhagen Accord, indicate that reduction targets under a future regime will
probably follow a bottom-up approach.304 Recently, UNFCCC Executive Secretary Christiana
Figueres called on governments to transform the Cancun Agreements into tangible action, and
to provide clarity on the future of the Kyoto Protocol.305 Unfortunately, from an ecological
point of view, the Cancun Conference failed to explicitly acknowledge the gap- already
calculated after Copenhagen- that exists between the reductions needed to keep the
temperature under 2°C increase and the pledges made so far.306 As no new reduction
commitments were included in Cancun, this gap still remains. Ms. Figueres warned that the
promises to reduce or limit GHG emissions so far only equal 60% of what scientists say is
necessary to keep temperatures below the 2°C threshold.307
302
ENB Cancun Conference, supra note 81, 5.
ENB Cancun Conference, supra note 81, 5-6.
304
M. KHOR, “Strange outcome of Cancun climate conference”, TWN Cancun News Update (14
December 2010), http://www.twnside.org.sg/title2/climate/news/cancun01/cancun.news.20.pdf.
305
UNFCCC, “UN’s top climate change official calls on governments to quickly transform Cancun
Agreements into action, provide clarity on future of the Kyoto Protocol”, Secretariat Press Release (1
March
2011),
http://unfccc.int/files/press/press_releases_advisories/application/pdf/pr20110103tokyo.pdf
306
CENTRE FOR BIOLOGICAL DIVERSITY (ed.), “Climate Talks Lurch Forward But Fail to Make
Significant Progress Towards Science-based Greenhouse Pollution Reduction Targets”, (11 December
2010), http://www.commondreams.org/newswire/2010/12/11.
307
Ibid.
303
57
5. THE POST-2012 LEGAL REGIME
A. A LEGALLY BINDING REGIME?
Many countries expressed their preference for a legally-binding agreement (LBA) for the post2012 regime.308 They see an LBA as the most likely path towards a solid, environmentally
sound and ambitious solution for climate change.309 Given the emphasis many countries and
authors place on the term, it is worth examining what exactly is understood under ‘legally
binding’. This requires a short explanation of certain aspects of treaty law.
The most common examples of LBAs are treaties, such as the UNFCCC and the Kyoto
Protocol. States that have consented to be bound by a treaty are obliged to comply with its
terms, based on the principle of ‘pacta sunt servanda’.310 This principle and the principle that
treaties depend on state’s consent, are two cornerstones of treaty law.311 Starting point is the
circumstance that there is no international legislature to impose binding rules. Therefore, states
are free in their choice to accept a treaty or not. International treaty obligations thus depend on
308
UNFCCC, Ad Hoc Working Group on Long-Term Cooperative Action under the Convention, Ideas
and proposals on the elements contained in paragraph 1 of the Bali Action Plan, Submissions from
Parties,
FCCC/AWGLCA/2009/MISC.1,
(13
March
2009)
(hereinafter:
FCCC/AWGLCA/2009/MISC.1), Submission from Cuba, p. 27, Submission from Norway p.62;
UNFCCC, Ad Hoc Working Group on Long-Term Cooperative Action under the Convention,
Additional views on which the Chair may draw in preparing text to facilitate negotiations among
Parties, Submissions from Parties, FCCC/AWGLCA/2010/MISC.2, (30 April 2010) (hereinafter:
FCCC/AWGLCA/2010/MISC.2), Submission from the United States, p. 79, Submission from
Venezuela, Cuba, Bolivia, Ecuador and Nicaragua, p.86, Submission from New Zealand, p.72;
Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions: International Climate Policy postCopenhagen: Acting now to Reinvigorate Global Action on Climate Change, COM(2010)86 final
http://ec.europa.eu/environment/climat/pdf/com_2010_86.pdf, (1) 4.
309
Cartagena Dialogue Discussion Paper, “Legal Options and Regime Scenarios”, on file with author
(1) (hereinafter: Cartagena paper, Legal options), 2.
310
Implying that “every treaty in force is binding upon the Parties to it and must be performed by them
in good faith”: VCLT, supra note 47, article 26; M. A. DRUMBL, “Actors and law-making in
international environmental law” in M. FITZMAURICE, D. M. ONG, and P. MERKOURIS (eds.), Research
Handbook on International Environmental Law, Cheltenham, Edward Elgar Publishing Limited, 2010
(hereinafter: M. A. DRUMBL, Actors and law-making in international environmental law), (3) 15; A.
WIERSEMA, “The New International Law-Makers? Conference of the Parties to Multilateral
Environmental Agreements”, Michigan JIL 2009, vol. 31, (231) (hereinafter: A. WIERSEMA, The New
International Law-Makers?), 234.
311
D. BODANSKY, The Art and Craft of International Environmental Law, supra note 89, 156.
58
State’s consent, and in this sense, all those obligations are voluntary.312 But, while the
acceptance of a treaty obligation is voluntary; once a state has accepted an obligation, it is
bound by “pacta sunt servanda” and the fulfilment of this obligation is no longer voluntary.313
Once a state assumes a treaty obligation, the level of enforcement of a provision is irrelevant
for the qualification of a provision as binding.
As authoritatively advocated by GERALD FITZMAURICE, the law is not law because it is
enforced; rather the other way around, it may be enforced because it is law.314 The possibility
to enforce a rule is thus a consequence of its nature as ‘law’, and not a precondition for it to be
law.315 Nevertheless, it must be noted that the legal character of a specific provision in an LBA
depends on a number of factors.316 First of all, the level of normativity. Provisions that are
formulated in mandatory language are understood to be binding, rather than provisions that are
formulated in merely discretionary and contextual language.317 Second, the level of precision
is relevant to determine the legal character. An obvious example is the difference between the
emission reduction commitment in the UNFCCC and the one in the Kyoto Protocol. The
former requires States to use their “best efforts to reduce their emissions, taking into account
their capacity and circumstances”, while the latter stipulates States can “not exceed their
assigned amounts, calculated pursuant to their quantified emission limitation and reduction
commitments inscribed in Annex B”.318 A third factor is the existence of reporting and
monitoring procedures. Where such procedures are in place, the relevant provisions can
stringently be enforced.
To recapitulate briefly: The legally binding nature of an agreement depends on state’s consent,
and is reflected in its form, the legal form of its commitments, the prescriptive and specific
character of these commitments and in the procedures and institutional framework established
312
Ibid; D. BODANSKY, “Climate Commitments: Assessing the Options” in J. ALDY, J. ASHTON et al.,
Beyond Kyoto- Advancing the international effort against climate change, Arlington, Pew Center on
Global Climate Change, 2003, (37) (hereinafter: D. BODANSKY, Climate Commitments), 38.
313
Ibid.
314
G. FITZMAURICE, “The General Principles of International Law Considered from the Standpoint of
the Rule of Law”, Hague Recueil 1957, vol. 92, 45.
315
B. MÜLLER et al., Unilateral Declarations, supra note 161,18.
316
L. RAJAMANI, The Copenhagen Agreed Outcome, supra note 223, 4; J. WERKSMAN, K.
HERBERTSON, The Legal Character of National Actions, supra note 34, 21; B. MÜLLER et al.,
Unilateral Declarations, supra note 161, 20.
317
For instance the UNFCCC is phrased in hortatory language: ‘should’, ‘aim’: D. BODANSKY, The
Evolution of Multilateral Regimes, supra note 241, 8.
318
D. BODANSKY, The Evolution of Multilateral Regimes, supra note 241, 8.
59
to ensure compliance with its provisions.319 The combination of those elements renders an
LBA a strong or weak agreement. The benefits and risks of imposing high or low standards on
these aspects are clearly explained by Werksman.320
319
J. WERKSMAN, Law and Disorder: Will the Issue of Legal Character Make or Break a Global Deal
on Climate?”, The German Marshall Fund of the United States Policy Brief 2010,
http://www.scribd.com/doc/35734969/Law-and-Disorder-Will-the-Issue-of-Legal-Character-Make-orBreak-a-Global-Deal-on-Climate, (1) (hereinafter: J. WERKSMAN, The Issue of Legal Character), 2; J.
WERKSMAN, “Legal Symmetry and Legal Differentiation under a Future Deal on Climate”, Climate
Policy 2010, vol. 10, (672) (hereinafter: J. WERKSMAN, Legal Symmetry and Legal Differentiation),
673; B. MÜLLER et al., Unilateral Declarations, supra note 161, 20.
320
J. WERKSMAN, The Issue of Legal Character, supra note 319, 3.
60
Legal Form
Content (legal form of the
Procedures and institutional
commitment, clarity,
Framework (compliance,
specificity, ambition)
enforcement, MRV)
Standards
Binding
Non-Binding
High
Low
High
Low
Benefits
Greater
Wider
Greater
Wider
Greater
Wider
financial
participation
transparency,
participation
transparency,
participation
support to
predictability
predictability
Parties and
and
and
institutions
accountability
accountability
Incorporation
Higher
Clear market
Wider
Clearer market
Wider
in domestic
expressed
signals
ratification
signals
ratification
law
ambition
Media and
Harmonization/
Higher rates of
public
mutual
domestic
awareness
recognition of
implementation
domestic
Confidence
legislation
of carbon
markets
Risks
Lower
Lack of media
Lower
Lack of
Non-
Wide-spread
common
and
common
media and
participation
non-
denominator
awareness and
denominator
public
commitments
support
commitments
awareness
public
compliance
and support
Non-
Inefficient/
Non-ratification
participation
inoperable
Non-
carbon-
participation
markets
Nonratification
Non-
Retreat
from
Withdrawal of
ratification
multilateralism
Wide-spread
non-compliant
and rule of law
non-
Parties
compliance
61
If Parties conclude an LBA, this entails several advantages. First, when states sign up to an
LBA, they express a strong political will to be bound by the agreement and to comply with its
provisions. Second, if certain states commit to an LBA, this can encourage other states to do
so. Third, an LBA is able to create the certainty and predictability that investors and industries
need to invest in low-carbon technologies. Fourth, most LBAs become binding and
domestically enforceable through national legislation.321 And finally, an LBA increases the
costs of violations, since withdrawal procedures are more cumbersome than in case of a nonbinding agreement and the reputational damage is larger.322
Despite the significant advantages, there are some disadvantages as well. An LBA can impede
the (rapid) effective implementation, since it only enters into force after a ratification process.
Moreover, an LBA is only binding for Parties who ratify it. This might cause a “split regime”,
if some Parties choose to ratify them and others do not. And more fundamentally, when states
sign up to a LBA, they might lower the commitments they engage in. As mentioned, an LBA
does not per se entail clear and binding obligations, and can set aspirational goals as well.323
Aside from treaties, other sources of law which are also considered to be binding are:
customary law, general principles of law and, to a lesser degree judicial decisions and
doctrine.324 As those sources are not of particular relevance here, they will not be examined.
The legal value of decisions of international organizations (more specifically, the COP) will be
examined infra.325
321
J. WERKSMAN, Legal Symmetry and Legal Differentiation, supra note 319, 673; J. WERKSMAN, The
Issue of Legal Character, supra note 319, 2; J. WERKSMAN, K. HERBERTSON, “The Aftermath of
Copenhagen: Does International Law have a Role to Play in a Global Response to Climate Change”,
MJIL 2010, (109) (hereinafter: J. WERKSMAN, K. HERBERTSON, The Aftermath of Copenhagen), 120;
Cartagena paper, Legal options, supra note 309, 2; D. BODANSKY, The Evolution of Multilateral
Regimes, supra note 241, 7.
322
D. BODANSKY, Climate Commitments, supra note 312, 39 ; W. HARE, C. STOCKWELL, C.
FLACHSLAND, S. OBERTHÜR, “The Architecture of the Global Climate Regime: A Top Down
Perspective”, Climate Policy 2010, (600) (hereinafter: W. HARE et al., The Architecture of the Global
Climate Regime), 613.
323
J. WERKSMAN, The Issue of Legal Character, supra note 319, 2-3; J. WERKSMAN, Legal Symmetry
and Legal Differentiation, supra note 319, 3.
324
United Nations, Statute of the International Court of Justice, 18 April 1946, Article 38.1: This article
is generally accepted as the most authoritative statement of sources of law: M. N. SHAW, International
Law, Cambridge, Cambridge University Press, 2008, 70.
325
See infra, 5.B.4: Expand COP decisions.
62
B. WHAT EXACTLY ARE THE LEGAL OPTIONS?326
Preliminary, it must be noted that the options outlined below are not mutually exclusive and
can be combined, e.g. amendments to the Kyoto Protocol could be combined with amendments
to the UNFCCC. An LBA will probably be complemented by COP decisions, due to timeconsiderations.327
B.1 Amendments to the Kyoto Protocol
B.1.1 Procedure for amending the Protocol- Article 20 Kyoto Protocol
Six- months rule
Parties which endeavour to propose amendments to the Protocol,328 must communicate the text
of the amendment to the Secretariat. This must occur in time to ensure that the Secretariat is
able to communicate the text to the other Parties, at least six months before the meeting at
which it is proposed for adoption (Kyoto Protocol, article 20.2). A session of the CMP/COP
comprises a series of meetings.329 This is relevant because the deadline to propose
amendments to the Protocol is determined by the ‘meeting’; while the deadline to propose new
Protocols is determined by the ‘session’.
Which text must be communicated?
The article specifically mentions the text of a proposed amendment. In combination with the
obligation to try to reach consensus on the proposal, (Kyoto Protocol, article 20.3) this implies
that the text of the amendment can be changed after it has been proposed. Another
interpretation would render the obligation to try to reach consensus useless, since there would
326
Of the options outlined below, the first three are widely considered to be legally binding. The fourth,
COP decisions, have a debated legal value.
327
As elaborated on infra, 5.C.1.3: Proceeding through COP decisions.
328
Any Party can do so, according to article 20.1 Kyoto Protocol.
329
The United Nations Office of Legal Affairs confirmed that if a COP ‘session’ commenced on 1
December, an amendment proposed on 2 June could only be considered on or after the 2nd December,
and not on the first!: F. YAMIN and J. DEPLEDGE, The international climate change regime: a guide to
rules, institutions and procedures, Cambridge, Cambridge University Press, 2004, 547, footnote 8;
LEGAL RESPONSE INITIATIVE (ed.), “Procedure for amendments to the Kyoto Protocol”, LRI Briefing
Paper 2010, http://www.legalresponseinitiative.org/download/BP21E%20-%20Briefing%20Paper%20%20KP%20Amendment%20Procedure%20(19%20July%202010).pdf, (1) 3.
63
simply be no room for compromise.330 However, this possibility to change the text in order to
reach consensus is not unlimited. The changes to the proposed amendment may not turn it into
a different amendment. For instance, if a text concerning finance would be changed into an
amendment regarding compliance, it would be questionable from a procedural point of view if
this amendment was actually proposed 6 months earlier. Therefore, it is desirable for the
proposed amendment to contain all relevant elements to be in accordance with article 20 of the
Kyoto Protocol.331
Requirements for the entry into force
Amendments to the Kyoto Protocol must be adopted at ordinary sessions of the CMP.
Amendments are preferably adopted by consensus. However, if all efforts at consensus have
been exhausted, without fruitful result, the amendment can be adopted by a three-fourths
majority332 vote of the Parties present and voting at the meeting (Kyoto Protocol, article 20.3).
If an amendment is adopted by a majority vote, it only enters into force for those Parties who
have accepted it (Kyoto Protocol, article 20.4, 20.5). Individual states thus do not have a
“veto” power. On the other hand, they can neither be obliged to comply with an amendment
against their will.333 With respect to Parties that did not accept the amendment, the pre-existing
provisions remain in force.334 This causes a ‘split-regime’, whereby practical difficulties and
legal uncertainties may arise as to the processes that are being conducted under those two
parallel regimes.335
Important to note, amendments to the Kyoto Protocol enter into force on the ninetieth day after
the date of receipt by the Depositary of an instrument of acceptance (i.e. by ratification or
accession) by at least three fourths of the Parties to the Protocol. Ratification by 144 states is
without a doubt time-consuming, and one of the biggest disadvantages of this option with
regard to the avoidance of a gap.336
330
Legal Expert Group EU (LEX), “Draft LEX- Background paper on procedural requirements related
to proposals for amendments to the Kyoto Protocol and the UNFCCC”, on file with author, (1) 2.
331
Ibid.
332
Currently, there are 192 Parties to the Kyoto Protocol. A ! majority vote means an affirmative vote
of at least 144 Parties.
333
J. BRUNNÉE, COPing with consent, supra note 34, 18.
334
D. BODANSKY, Legal Form of a New Climate Agreement, supra note 210, 3.
335
Legal Expert Group EU (LEX), “Legal implications arising from the work of the AWG KPBackground document”, 2009, on file with author, (1) 3.
336
See infra: 5.B.1.5, Will there be a gap?
64
For the commitments during subsequent periods for Annex I Parties, a different rule is
applicable. According to article 3.9 of the Kyoto Protocol, these future commitments must be
established in amendments to Annex B of the Protocol and must be adopted in accordance with
the provisions of Article 21.7. The latter stipulates that amendments to Annex B are adopted
in accordance with the procedure of Article 20, with this limitation that they can only be
adopted with the written consent of the Party concerned. (Kyoto Protocol, article 21) The
AWG-KP was only mandated to negotiate amendments to under article 3.9 of the Kyoto
Protocol and Annex B. Consequently, discussions on other amendments to the Kyoto Protocol
have to be conducted within the regular CMP sessions.337
B.1.2 Strengths and weaknesses
There are several advantages to amending the Kyoto Protocol, and more in particular,
installing a second commitment period. Firstly, there is an existing framework, including
subsidiary bodies, rules for technical details, a compliance mechanism. It would thus be
possible to retain the Kyoto acquis. Secondly, amending the Kyoto Protocol would give a clear
legal basis for the continued application of the flexible mechanisms.338 Thirdly, there would be
no need to implement a whole new regime at the national level, which would undoubtedly save
time.
A major flaw is that so far, only Annex I countries have commitments; in order to include
developing nations as well, a lot of redrafting of the Protocol would be necessary. One
proposal is to include a new Annex C to the Kyoto Protocol, in which large developing nations
would get reduction targets.339A second obstacle that amending the Kyoto Protocol faces, is
the aversion of the USA and other developed nations with regard to a second commitment
period.
337
L. MASSAI, The Long Way to the Copenhagen Accord, supra note 85, 114.
LRI, Legal options to avoid a gap, supra note 172, 1.
339
In this proposal from A. M. HALVORSSEN, large developing nations such as China, India and Brazil
would have binding limitation or reduction commitments. As developing countries grow and emit more
GHGs, they would graduate into the Annex C category. These nations would remain non-Annex I
Parties under the UNFCCC. The author additionally proposes to install a new Annex C Mitigation Fund
to help these countries to meet their obligations: A. M. HALVORSSEN, Common, but Differentiated
Commitments in the Future Climate Change Regime, supra note 51.
338
65
B.1.3 Negotiating positions
Several developed countries have a negative stance towards the continuation of the Kyoto
Protocol. They prefer an outcome that is more comprehensive than the Kyoto Protocol which
only imposes reduction commitments limited on Annex I Parties. An LBA that would replace
the Kyoto Protocol and include all major emitters is the preferred outcome for them.340 For
instance, the US submitted that it “continues to support the goal of a legally binding outcome,
provided that the legally binding elements of an otherwise acceptable text are legally binding
with respect to all relevant Parties – not just Annex I or developed country Parties.”341 During
negotiations, developed nations often attempt to link the work of the two AWGs, to ensure that
the large developing nations are included in the future regime as well. Many already certified
that they will not accept a new legally binding commitment period, without comparable efforts
from large developing countries. During and shortly after the Cancun Conference, Japan and
Russia, later followed by Canada, explicitly stated they will not accept a target for a second
commitment period under the Kyoto Protocol.342 The EU for its part did reconfirm its
willingness to consider a second commitment period under the Kyoto Protocol.343
Many developing countries, to the contrary, view a second commitment period under the
Kyoto Protocol with as a prerequisite for commitments for them. They uphold that developed
nations should take the lead. For instance, India stated “the commitments of Annex I countries
that are Party to KP should be finalized and inscribed under the Kyoto Protocol” and that
340
FCCC/AWGLCA/2010/MISC.2, supra note 308, Submission from New Zealand, 72; UNFCCC,
Views on an indicative roadmap, Submissions from Parties, Ad Hoc Working Group on Long-term
Cooperative Action under the Convention, FCCC/AWGLCA/2010/MISC.3, (17 May 2010) (hereinafter:
FCCC/AWGLCA/2010/MISC.3), Submission from Japan, 7.
341
FCCC/AWGLCA/2010/MISC.2, supra note 308, Submission from the United States of America,
79.
342
D. FOGARTY, Kyoto pact rift threatens progress, supra note; D. TEN KATE, A. MORALES, Japan,
Russia Won’t Take on New Kyoto Targets, supra note; L. L. LIN, “New direction in Kyoto Protocol
talks”,
TWN
Bangkok
News
Update
(12
April
2011),
http://www.twnside.org.sg/title2/climate/news/bangkok03/bkk3_news_up10.pdf, (1) 1.
343
IISD, “Summary of the Bangkok Climate Talks: 3-8 April 2011”, ENB 2011,
http://www.iisd.ca/climate/ddwg14/, (1) (hereinafter: ENB Summary of Bangkok Talks), 9.
66
“Observance of their commitments by Annex I Parties under Kyoto Protocol is crucial”.344
Other large developing nations made similar statements.345
During the latest AWG-KP meeting, little progress was made. Major disagreement arose
regarding the agenda of negotiations.346 Developing nations required that the political
commitment for a second commitment period was discussed first. They refused to negotiate
about technical details, without the assurance that a second commitment period will actually
enter into force.347 Developed countries for their part wanted to establish the technical rules
first, before agreeing to specific reduction numbers. They stressed that rules can determine
whether the numbers are ambitious. The EU specifically mentioned that it ‘would not risk
buying a pig in a poke’, making reference to the Kyoto commitments having watered down
after the elaboration of the rules.348
In any event, it is highly unlikely that amendments to the Kyoto Protocol are accepted by
itself. If the Kyoto Protocol is amended, this amendment will very likely be accompanied by
another set of decisions or new agreements.
B.1.4 Current proposals?
Several Parties submitted proposals to amend the Kyoto Protocol.349 Obviously, these
proposals are very diverse. The EU proposed to install a second commitment period, with an
overall reduction goal of 30 per cent below 1990 by 2020 and to include international aviation
344
UNFCCC, Additional views on which the Chair may draw in preparing text to facilitate negotiations
among Parties, Submissions from Parties, Ad Hoc Working Group on Long-term Cooperative Action
under the Convention, FCCC/AWGLCA/2010/MISC.2/Add.1, (17 May 2010) (hereinafter:
FCCC/AWGLCA/2010/MISC.2/Add.1), Submission from India, 11.
345
FCCC/AWGLCA/2010/MISC.3, supra note 340, Submission from Bolivia, 3: “an agreed outcome
in LCA, which is not based on the adoption of the second commitment period of the Kyoto Protocol, for
all its Annex I members, is inconceivable”; FCCC/AWGLCA/2010/MISC.3, supra note 340,
Submission from South Africa, p. 10: “it will be essential to also reach an agreement on quantified
emission reduction targets under a second commitment period for Annex I Parties under the Kyoto
Protocol”.
346
ENDS EUROPE (ed.), “Governments go back to old habits in Bangkok”, (8 April 2011),
http://www.endseurope.com/26033/governments-go-back-to-old-habits-in-bangkok.
347
ENB Summary of Bangkok Talks, supra note 343, 10.
348
ENB Summary of Bangkok Talks, supra note 343, 11.
349
Among others: Tuvalu, Philippines, New Zealand, the EU; For an overview:
http://unfccc.int/documentation/items/4899.php.
67
and maritime transport in the Kyoto Protocol.350 A large group of African nations submitted a
proposal, which demands of Annex I Parties to reduce their aggregate anthropogenic carbon
dioxide equivalent emissions of greenhouses gases listed in Annex A by at least 40 per cent
below 1990 levels in 2020.351 New Zealand for its part suggested that emission limitations and
reductions for Annex I parties must be conditional on the entry into force of the instrument
emerging from the AWG-LCA process.352 As mentioned supra, the CMP was unable in
Copenhagen and Cancun to find a consensus on these proposals.
B.1.5 Will there be a gap?
In the light of avoiding a gap between commitment periods, the second commitment period
must enter into force on or before 1 January 2013. Counting back ninety days necessary for the
entry into force, this results in the condition of the receipt by the Depositary of instruments of
acceptance (i.e. by ratification or acceptance) by 143 States by 3 October 2012. Strictly
speaking, a second commitment period can still be adopted at the seventh session of the CMP.
However, it is unlikely that by 3 October 2012 the required ratifications will have occurred. As
domestic ratification usually involves adoption by national legislative bodies, this process will
very likely take more time.353 Without using any of the possibilities to avoid a gap,354 a gap
seems unavoidable.355
350
UNFCCC, Proposal from the Czech Republic and the European Commission on behalf of the
European Community and its member States for an amendment to the Kyoto Protocol, Conference of
the Parties serving as the Meeting of the Parties to the Kyoto Protocol, Copenhagen, 7–18 December
2009 FCCC/KP/CMP/2009/2, (11 June 2009).
351
UNFCCC, Proposal from Algeria, Benin, Brazil, Burkina Faso, Cameroon, Cape Verde, China,
Congo, Democratic Republic of the Congo, El Salvador, Gambia, Ghana, India, Indonesia, Kenya,
Liberia, Malawi, Malaysia, Mali, Mauritius, Mongolia, Morocco, Mozambique, Nigeria, Pakistan,
Rwanda, Senegal, Seychelles, Sierra Leone, South Africa, Sri Lanka, Swaziland, Togo, Uganda, United
Republic of Tanzania, Zambia and Zimbabwe for an amendment to the Kyoto Protocol, Conference of
the Parties serving as the Meeting of the Parties to the Kyoto Protocol, Copenhagen, 7-18 December
2009, FCCC/KP/CMP/2009/7, 15 June 2009.
352
UNFCCC, Proposal from New Zealand for an amendment to the Kyoto Protocol, Conference of the
Parties serving as the Meeting of the Parties to the Kyoto Protocol, Copenhagen, 7–18 December 2009
FCCC/KP/CMP/2009/6, 12 June 2009.
353
UNFCCC, Legal considerations relating to a possible gap between the first and subsequent
commitment periods, Ad Hoc Working Group on Further Commitments for Annex I Parties under the
Kyoto Protocol, thirteenth session, Bonn, 2-6 August 2010, FCCC/KP/AWG/2010/10, (20 July 2010)
(hereinafter: Secretariat, Legal considerations relating to a possible gap), 4.
354
These possibilities are outlined infra in 5.C.1: Legal options to ensure that there is no gap.
355
L. L. LIN, “Developing countries demand political commitment to the Kyoto Protocol”, TWN
Bangkok
News
Update
(7
April
2011),
http://www.twnside.org.sg/title2/climate/news/bangkok03/bkk3_news_up07.pdf, (1) 1.
68
B.2 Amendments to the UNFCCC
B.2.1 Procedure to amend the Convention- Article 15 UNFCCC
Six- months rule
Proposals to amend the Convention may be done by any Party, provided that the text of the
proposal is communicated to the other Parties by the secretariat at least six months before the
meeting at which it will be proposed (UNFCCC, article 15.1, 15.2).
Requirements for the entry into force
Amendments are adopted at ordinary sessions of the COP, preferably by consensus. The
adoption procedure of amendments to the UNFCCC is similar to the adoption of protocols. If
an amendment cannot be adopted by consensus, it can as a last resort be adopted by a threefourths majority vote of the Parties present and voting at the meeting (UNFCCC, article 15.3).
An amendment will enter into force for those Parties that accepted it, on the ninetieth day after
the date of receipt of the instrument of acceptance by at least ! of the Parties to the UNFCCC
(UNFCCC, article 15.4). For Parties that did not adopt the amendment at the meeting, the
amendment enters into force on the ninetieth day after the day on which that Party deposited
its instrument of acceptance. This procedure is similar to amendments to the Kyoto Protocol,
reminding that no Party can be compelled to comply with a not-wanted amendment. A special
rule counts for changes to the Annex I and Annex II lists. Article 4.2 (f) UNFCCC states that
changes to these lists can only occur with the consent of the Party concerned.
B.2.2 Strengths and weaknesses
A benefit of amending the UNFCCC consists of the fundamental structural changes that could
be made. Article 15 UNFCCC contains no substantive limits to the amendments that can be
made. For instance, amendments could change existing commitments, or impose new
commitments on large developing nations.356 The pledges made by developing nations, or the
nationally appropriate mitigation actions could be included in Annexes.357 Yet, since the
UNFCCC is only a framework convention, it would be more appropriate to list them in
356
357
D. BODANSKY, Legal Form of a New Climate Agreement, supra note 210, 3.
L. RAJAMANI, “Addressing the “Post-Kyoto” Stress Disorder, supra note 223, 819.
69
annexes to the Kyoto Protocol. The obvious difficulty of amending the UNFCCC is the lack of
political consensus to make such changes.
B.2.3 Negotiating positions
Some large developing countries claimed that the AWG-LCA is not mandated to negotiate
amendments to the UNFCCC. They base their judgment on the AWG-LCA’s mandate, being
to “enable the full effective and sustained implementation of the Convention”. This wording
would according to them not allow the AWG to discuss changes to the Convention.358 By this
claim, they try to avoid that changes to the Annex I and non-Annex I division could be part of
the negotiations under the AWG-LCA. Despite the uncertainty of the scope of the AWGLCA’s mandate, amendments to the UNFCCC can in any event be negotiated in the COP.
B.2.4 Current proposals to amend?
A recent amendment to the UNFCCC was the modification to include Malta (part of the EU,
but no Annex I party before) in Annex I.359
B.2.5 Will there be a gap?
Although amendments to the UNFCCC are theoretically an option, in a practical sense they are
unlikely to provide a solution to the 2012-problem. The requirements for the entry into force
render a gap a very likely, at least in the absence of the options outlined below.
358
UNFCCC, Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan,
Submissions from Parties, FCCC/AWGLCA/2008/Misc.5/Add.2 (Part I), (10 December 2008),
Submission from India, p. 155; FCCC/AWGLCA/2009/MISC.1, supra note 308, Submission from
Brazil, p. 17: “The climate change regime operationally defines developed countries as Annex I Parties
and/or Annex II Parties and developing countries as non-Annex I Parties. The Bali Action Plan does
not authorize any renegotiation of this, nor does it warrant proposals for establishing new categories of
countries or graduation of countries from one category to another. Dealing with full, effective and
sustained implementation of the Convention does not authorize, for example, the renegotiation of its
commitments or of the careful balance between those it establishes for Annex I Parties and non-Annex I
Parties.”
359
UNFCCC, Proposal from Malta to amend Annex I to the Convention, FCCC/CP/2009/2 (13 May
2009); UNFCCC, Decision 3/CP.15, Amendment to Annex I to the Convention, in Report of the
Conference of the Parties on its fifteenth session, held in Copenhagen from 7 to 19 December 2009,
Addendum Part Two: Action taken by the Conference of the Parties at its fifteenth session,
FCCC/CP/2009/11/Add.1, (30 March 2010).
70
B.3 A new Protocol under the UNFCCC
B.3.1 Procedure for the adoption of a protocol- Article 17 UNFCCC
When Parties adopt a Protocol under article 17 UNFCCC, they in fact create a new treaty.360
Nevertheless, it is formally interlinked with the Convention and it draws interpretation from its
terms.361 This new treaty has to be adopted, signed and ratified. A new Protocol to the
UNFCCC could be adopted to supplement or to replace the Kyoto Protocol.
Six- months rule
The texts of proposed protocols must be communicated at least six months before the relevant
COP ‘session’ (UNFCCC, article 17.2).362
What text?
Texts that are submitted ought to be able to form some basis for negotiations. It is namely the
intention to put these texts to negotiation in order to conclude an agreement. 363
Who may propose a text?
In contrast with article 20.1 of the Kyoto Protocol and article 15 UNFCCC, article 17
UNFCCC does not specify who may propose a protocol. First, from practice within the
UNFCCC it can be derived that the Parties have the right to propose a new draft protocol.
From a perspective of time management of the conferences, it might be useful to obtain
support from other Parties before submitting the proposal. This support is clearly not regarded
as a formal requirement, since several Parties have submitted individual proposals.364 Second,
the AWG-LCA, which was mandated to organise the negotiations regarding long-term
360
J. BRUNNÉE, COPing with Consent, supra note 34, 17; Protocols are in fact “treaties in their own
rights”: G. ULFSTEIN, “International framework for environmental decision-making” in M.
FITZMAURICE, D. M. ONG and P. MERKOURIS (eds.), Research Handbook on International
Environmental Law, Cheltenham, Edward Elgar Publishing Limited, 2010, (24) (hereinafter: G.
ULFSTEIN, International framework for environmental decision-making), 31.
361
Because of the substantive linkages between a Convention and Protocol, Parties often decide to use
the same institutional framework for the Protocol: G. ULFSTEIN, International framework for
environmental decision-making, supra note 360, 30.
362
Article 17 UNFCCC speaks of ‘session’, implying that the start of the conference counts as relevant
date for the six-months rule.
363
L. RAJAMANI, “Addressing the “Post-Kyoto” Stress Disorder, supra note 223, 813.
364
See infra 5.B.3.4: Current proposals.
71
cooperative action, also develops texts. If Parties want to work on the text negotiated in the
AWG-LCA during the COP in Durban, the communication must be sent out six months before
the session.365 In the run-up to Copenhagen, uncertainty existed as to whether proposing a
Protocol is included in the mandate of the AWG-LCA chair.366 Some argued that since the
AWG-LCA was not expressly mandated in the Bali Action Plan to adopt a new protocol,
discussions on the adoption of a new protocol would have to be conducted during the COP
sessions.367 The Chair’s negotiating text was indeed presented in Copenhagen to the COP
under a separate agenda item. Moreover, this uncertainty was pragmatically remedied by Costa
Rica. The latter added preambular provisions, final clauses and draft annexes to the document
and submitted it as a proposal of its own.368
Requirements for the entry into force
New protocols are adopted at ordinary sessions of the COP. Article 17 does not define a
specific voting procedure. In the absence of a specific voting procedure, and without the Rules
of Procedure formally adopted by the COP, new Protocols will have to be adopted by
consensus.369 The requirements for the entry into force of such protocol would have to be
established by that instrument (UNFCCC, article 17.3). Standard practice of multilateral
environmental agreements consists of the adoption of protocols by consensus; in case it is
impossible to achieve consensus, by a two-third or three-fourth majority vote, followed by a
ratification procedure. The protocol itself must determine the required number of ratifications
for the entry into force.370 The time this procedure takes, constitutes a weakness of this legal
option in the light of avoiding a gap.371
Terminating Kyoto?
As stated supra, the Kyoto Protocol itself will not terminate in 2012. Therefore, the Kyoto
Protocol will only end “by consent of all the Parties after consultation with other contracting
States” or by “conclusion of a later treaty relating to the same subject-matter”. (VCLT, article
365
L. RAJAMANI, “Addressing the “Post-Kyoto” Stress Disorder, supra note 223, 810.
The mandate as included in the Bali Action Plan: Decision 1/CP.13.
367
L. MASSAI, The Long Way to the Copenhagen Accord, supra note 85, 114.
368
L. RAJAMANI, “Addressing the “Post-Kyoto” Stress Disorder, supra note 223, 812.
369
See supra 2.A.4: Institutional Framework; D. BODANKSY, Legal Form of a New Climate
Agreement, supra note 210, 4.
370
R. CHURCHILL, G. ULFSTEIN, Autonomous Institutional Arrangements, supra note 84, 632.
371
See infra: 5.B.3.2: Strengths and Weaknesses.
366
72
54 and 59). In the latter case, the treaty will only end if (a) it appears from the later treaty or is
otherwise established that the parties intended that the matter should be governed by that
treaty; or (b) the provisions of the later treaty are so far incompatible with those of the earlier
one that the two treaties are not capable of being applied at the same time (VCLT, article 59).
Discussions can arise easily; if some new provisions are not “sufficiently” incompatible with
those of the Kyoto Protocol, or the intention of the parties to replace the provisions is not clear
for all of them, the Kyoto Protocol will remain (partly) in existence. As a consequence, article
30 VCLT would be applicable. This rule contains several split-regimes; distinguishing
between provisions that are incompatible with the earlier treaty and those who are not, and
installing a different regime in case all Parties to the first treaty are bound by the new one, or if
this is not the case. The application of article 30 VCLT would render the whole process
unnecessarily complex. If Parties establish a new protocol, it would be the most practical
solution to decide whether or not to completely end the Kyoto Protocol.372
B.3.2 Strengths and weaknesses
In general, the advantages and disadvantages outlined supra in 5.A apply, as a new protocol
would constitute a new LBA. More specifically, if a protocol would be adopted to replace the
Kyoto Protocol, it would be possible to subject all countries to the same legal and institutional
framework. How much sense this option might make, it is unlikely to pass, having regard to
the Parties’ negotiating positions.373 If a Protocol would be adopted to supplement the Kyoto
Protocol, it would be possible to include emission reductions for large emitting nations and the
US (under a possible less stringent framework). This could assure the Annex I parties under a
second commitment period to the Kyoto Protocol that comparable efforts by other parties
would be made.374A new protocol supplementing the Kyoto Protocol might be easier to adopt
in view of the negotiating positions. A rather inconvenient feature is the possibility of eventual
inconsistency, overlap of rules.375 A common feature to any new Protocol is the need of a
ratification procedure, which makes a gap in legal regulation after 2012, without using one of
the options outlined below unavoidable.
372
L. RAJAMANI, “Addressing the “Post-Kyoto” Stress Disorder, supra note 223, 817.
See infra, 5.B.3.3: Negotiating positions.
374
Cartagena paper, Legal options, supra note 309, 4.
375
Legal Expert Group EU (LEX), “Post 2012 Climate Legal Framework” Summary Paper 2008, on
file with author, (1) 3.
373
73
B.3.3 Negotiating positions
In general, the negotiating positions are those mentioned under B.1.3. The positions are here
briefly summarized with regard to a new protocol. For several developed countries, an LBA
replacing the Kyoto Protocol, which would include all countries, or at least the major emitters,
is the preferred outcome. To the contrary, for many developing countries, an LBA replacing
the Kyoto Protocol is not an option. They claim that a second commitment period with
reduction commitments for Annex I Parties as a necessary condition for new commitments for
them.
With regards to a supplementing LBA, the general stance of developing nations has long been
that they would not subscribe to legally binding reduction targets.376 An understandable
exception to the latter point of view is AOSIS, which promotes a comprehensive LBA.377 In
April 2010 the ministers of the BASIC countries nonetheless issued a statement that reflects a
constructive position on this issue:
“The Ministers agreed that in accordance with the mandate of the Bali Roadmap, such
agreements must follow two tracks and include an agreement on quantified emission reduction
targets under a second commitment period for Annex I Parties under the Kyoto Protocol, as
well as a legally binding agreement on long-term cooperative action under the Convention.
Ministers felt that a legally binding outcome should be concluded at Cancún, Mexico in 2010,
or at the latest in South Africa by 2011.” (emphasis added)378
B.3.4 Current proposals?
Six proposals for new protocols have been submitted.379 In line with the negotiating positions,
these proposals either aim to replace,380 or complement the Kyoto Protocol.381 Notably, the
376
FCCC/AWGLCA/2010/MISC.2, supra note 308, Submission from Argentina, 9;
FCCC/AWGLCA/2010/MISC.2/Add.1, supra note 344, Submission from India, 10, noting that ‘while
it is! useful for the aggregate emission reductions objectives of Annex I Parties to be inscribed in a
protocol or an agreement, it is not necessary for a legally binding outcome to take place in form of an
agreement or a protocol’ and 12: “The mitigation actions of developing countries will be voluntary in
nature and will be taken in the context of sustainable development.”
377
FCCC/AWGLCA/2010/MISC.2, supra note 308, Submission from Grenada on behalf of the
Alliance of Small Island States, 61.
378
Joint Statement issued at the conclusion of the Third Meeting of BASIC Ministers, (25 April 2010),
http://moef.nic.in/downloads/public-information/BASIC-statement.pdf.
379
Proposals were made by Japan, Costa Rica, Tuvalu, Australia, Grenada and the United States of
America.
74
US submitted a proposal for an “implementing agreement”, without addressing the relationship
with the Kyoto Protocol.382
B.3.5 Will there be a gap?
As preliminary noted, if parties choose to adopt a protocol, this treaty will have to be signed
and ratified before it can enter into force. Acknowledging the end date of binding emission
reductions of 1 January 2013, one has to admit that it is highly unlikely for an agreement
concluded during COP-17 to enter into force before or on that date. Consequently, if Parties
adopt a protocol, it should be combined with one of the options outlined below in order to
avoid a gap.
B.4 Expand COP decisions
B.4.1 Procedure to adopt decisions
Parties can decide to fix the future regime in COP decisions. According to article 7.2
UNFCCC, the COP shall regularly review the implementation of the Convention and any
related legal instruments that the Conference of the Parties may adopt, and shall make, within
its mandate, the decisions necessary to promote the effective implementation of the
Convention. In accordance with this provision, COP decisions have been taken to launch
negotiations,383 review the adequacy of existing norms,384 and to put more flesh to the bone of
treaty obligations.385 The COP is additionally authorized to exercise such other functions as are
required for the achievement of the objective of the Convention as well as all other functions
assigned to it under the Convention (UNFCCC, article 7.2 (m)). The two latest ‘accords’
between the Parties, the Copenhagen Accord and the Cancun Agreements were taken note of,
380
For example; UNFCCC, Draft protocol to the Convention prepared by the Government of Japan for
adoption at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/3, (13 May 2009).
381
UNFCCC, Draft protocol to the Convention prepared by the Government of Costa Rica to be
adopted at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/6, (8 June 2009).
382
UNFCCC, Draft implementing agreement under the Convention prepared by the Government of the
United States of America for adoption at the fifteenth session of the Conference of the Parties,
FCCC/CP/2009/7, (6 June 2009).
383
For example, the Berlin Mandate and the Bali Action Plan.
384
For example, the Berlin Mandate that was launched in accordance with article 4. 2 (d) UNFCCC.
385
For example, the decisions concerning the compliance regime; A. WIERSEMA, The New
International Law-Makers?, supra note 310, 237.
75
respectively adopted by means of a COP decision. As stated supra, COP decisions can only be
adopted if consensus exists between the Parties.
B.4.2 Legal value of COP decisions
Preliminary, it must be noted that parties within a MEA themselves doubt the scope of COP
decisions. The uncertainty is not confined to a doctrinal debate between scholars. In the
context of the Basel Convention,386 the COP adopted a decision that changed the treaty
obligations to a serious degree.387 Despite the fact that the decision was adopted by consensus,
concerns arose that the content of the decision in fact would have to be adopted by an
amendment. Therefore, the subsequent COP proposed a formal amendment, which naturally
only entered into force for those Parties that ratified it.388
The legal value of a COP decisions varies with the legal basis the COP used to adopt the
decision, as some bases are not contested while others are. It is therefore useful to distinguish
between these legal bases. In the first place, the COP is mandated to take decisions at the
internal level, based on article 7 UNFCCC.389 This power to take procedural and
organizational decisions is comprehensively laid down in the treaty, and moreover
supplemented with a catch-all provision in article 7.2 (m) UNFCCC. Authors agree that at the
internal level, the powers of the COP are supplemented by the principles of international
institutional law (which includes implied powers). 390
Secondly, the COP can also take substantive decisions with regards to Parties’ obligations.
First, this can occur in an indirect way, by adopting amendments to treaties or by adopting
protocols. In these cases, the adoption depends on the consent of states and needs ratification
386
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their
Disposal, March 22, 1989, 1673 U.N.T.S.126.
387
Report of the Second Meeting of the Conference of Parties to the Basel Convention, (Basel
Convention, COP, Report II), Decision II/12, 19-20, UN Doc. UNEP/CHW.2/30 (25 March 1994),
http://basel.int/meetings/frsetmain.php?meetingId=1.
388
Decisions Adopted by the Third Meeting of the Conference of the Parties to the Basel Convention,
Decision III/1, UN Doc. UNEP/CHW.3/35 (28 November 1995); M. FITZMAURICE, Consent to Be
Bound, supra note 84, 487; N. LAVRANOS, “Multilateral Environmental Agreements: Who makes the
binding decisions?”, European Environmental Law Review 2002, (44) 46.
389
R. CHURCHILL, G. ULFSTEIN, Autonomous Institutional Arrangements, supra note 84, 628; J.
BRUNNÉE, COPing with consent, supra note 34, 16.
390
R. CHURCHILL, G. ULFSTEIN, Autonomous Institutional Arrangements, supra note 84, 629.
76
by parties to enter into force. Second, in certain cases the COP is said to have effective
lawmaking powers.
Two situations occur, the first being an explicit authority to take binding decisions. The wellknown example of such explicit authority to the COP is article 2.9 of the Montreal Protocol.
This article provides the COP with the competence to adjust the ozone depleting potentials, the
reductions of production, the scope, amount and timing of such adjustments, etcetera. Parties
to the Montreal Protocol shall make every effort to reach consensus. In absence of consensus,
the COP may take a decision by a two-thirds majority. Such decision shall be binding on all
parties (Montreal Protocol, article 2.9). This procedure of adjustments differs from the
amendment procedure within the Montreal Protocol, since adjustments accepted by a twothirds majority vote, and a majority among developed and developing nations present and
voting, (Montreal Protocol, article 2.9 (c)) is binding on all parties.391 No such explicit
authority was given to the COP/CMP of the UNFCCC/ Kyoto Protocol.392
The second possibility is the implicit inclusion of this authority in the treaty. This legal basis
for binding decision-making is more debated. The ambiguity surrounding it renders it a weaker
basis for decision-making. For example, article 6, 12 and 17 of the Kyoto Protocol call upon
the CMP to adopt guidelines, rules or procedures for the Kyoto Mechanisms. Disagreement
exist to the extent such decisions can be binding. BRUNNÉE argues that these Kyoto provisions
do not explicitly allow the CMP to adopt binding decisions. She argues that rules can be
binding, but need not to be. The fact that article 18 Kyoto Protocol distinguishes between
binding and non-binding consequences, is an argument for her to say that parties did not
envisage COP decisions to be binding.393 To the contrary, according to CHURCHILL &
ULFSTEIN, the term ‘rules’ suggests that the adopted decisions can be binding.394 Articles 6, 12
and 17 of the Kyoto Protocol do not specify the legal character of the rules that the COP/CMP
391
J. BRUNNÉE, COPing with consent, supra note 34, 21; R. CHURCHILL, G. ULFSTEIN, Autonomous
Institutional Arrangements, supra note 84, 633.
392
LEGAL RESPONSE INITIATIVE (ed.), “COP Decisions: Substance and Mandates”, LRI Briefing Paper
(4
October
2010),
http://www.legalresponseinitiative.org/download/BP25E%20%20Briefing%20Paper%20-%20COP%20Decisions%20-%20Substance%20and%20Mandates.pdf, (1)
(hereinafter: LRI, COP Decisions), 2; J. BRUNNÉE, COPing with consent, supra note 34, 21.
393
J. BRUNNÉE, COPing with consent, supra note 34, 24.
394
R. CHURCHILL, G. ULFSTEIN, Autonomous Institutional Arrangements, supra note 84, 633.
77
would have to adopt in the fulfilment of those enabling clauses.395 Nevertheless, Parties treated
them as having binding effect, and this could be seen as an argument that the enabling
provisions in the articles on the flexible mechanisms gave the power to the COP to adopt rules
that have a legal effect on the Parties.396 In any case, even if the adopted rules are not legally
binding from a formal point of view, they have had a de facto significant effect on the position
of parties, for example in the field of flexible mechanisms.397
With regards to this power of the COP to take decisions on substantive obligations, authors are
divided as to whether the COP has implied powers. CHURCHILL & ULFSTEIN argue that the law
concerning the COP resembles that of international organizations (IGOs) more than the
general law of treaties, and that therefore the law of IGOs should supplement the general law
of treaties when assessing a COP’s decision-making power. They claim that COPs ‘may be
considered to be IGOs, albeit of a less formal, more ad hoc nature than traditional IGOs. (…)
Thus, while due account should be taken of the special characteristics of these arrangements,
international institutional law should apply to them and supplement the law of treaties”.398
BRUNNÉE submits that it is a hybrid ‘between issue-specific diplomatic conferences and the
permanent plenary bodies of international organizations’. Both BRUNNÉE and CHURCHILL &
ULFSTEIN in the end agree that although COP decisions are not treaties, they can best be
conceptualized within the law of treaties, and the modes of consent this law allows for.399 COP
decisions on substantive obligations can be binding, in case when Parties have consented to
those decisions. Under the law of treaties, the decisions of COPs may be considered as
“subsequent agreements between the Parties regarding the interpretation of the treaty or the
application of its provisions”.400 That COP decisions fall under this type of agreement, has
been used as an argument by some to state that they cannot fundamentally change the content
of a treaty.401
395
These enabling clauses are the ‘treaty authorisation to adopt certain decisions, with the binding
effect on the parties’. They offer the COP a mandate to elaborate rules in a certain field, without having
to go through the amendment procedure: M. FITZMAURICE, Consent to Be Bound, supra note 84, 487.
396
M. FITZMAURICE, Consent to Be Bound, supra note 84, 500.
397
J. BRUNNÉE, COPing with consent, supra note 34, 26.
398
R. CHURCHILL, G. ULFSTEIN, Autonomous Institutional Arrangements, supra note 84, 647.
399
J. BRUNNÉE, COPing with consent, supra note 34, 16; R. CHURCHILL, G. ULFSTEIN, Autonomous
Institutional Arrangements, supra note 84, 636-642.
400
VCLT, supra note 47, article 31.3 (a); J. WERKSMAN, K. HERBERTSON, The Legal Character of
National Actions, supra note 34, 21.
401
J. WERKSMAN, K. HERBERTSON, The Legal Character of National Actions, supra note 34, 21.
78
The precise legal status of a COP decision thus varies with the language and content of the
decision, Parties’ behaviour and legal expectations and the enabling clause.402
B.4.3 Strengthen COP decisions by unilateral declarations?
It would legally be possible to adopt a COP decision and endorse it by a unilateral declaration
(UD).403 A UD is not one of the sources of international law provided in article 38 of the
Statute of the International Court of Justice (ICJ). But, this article does not entail an exhaustive
enumeration of sources.404 The ICJ confirmed that a UD may have the effect of creating legal
obligations, if (1) this declaration is made publicly and (2) it was the state’s intention to be
bound by it.405 On a later occasion, the ICJ maintained that in order for a UD to be legally
binding, it must not necessarily be directed to one particular state.406
With regards to this issue, the International Law Commission stated that: “Declarations
publicly made and manifesting the will to be bound may have the effect of creating legal
obligations. When the conditions for this are met, the binding character of such declarations is
based on good faith; States concerned may then take them into consideration and rely on them;
such States are entitled to require that such obligations be respected.”407 A UD has to be made
by a person who is vested with the power to bind its country.408 This could be any person that
holds full powers,409 or a person representing the State in specified areas in areas falling within
402
L. RAJAMANI, From Berlin to Bali and Beyond, supra note 217, 914; L. RAJAMANI, “The
Copenhagen Agreed Outcome, supra note 223, 5; LEGAL RESPONSE INITIATIVE (ed.), “Legal outcomes
of
the
Copenhagen
summit”,
LRI
Briefing
Note
(7
December
2009),
http://legalresponseinitiative.org/download/Briefing%20note%20%20Legal%20Outcomes%20of%20the%20Copenhagen%20Summit%20(7%20Dec%202009).pdf, (1)
2.
403
The technique of unilateral declarations has been used in the Strategic Arms Limitation Talks
(SALT) between the United States and the Soviet Union. They filled the gap between the end of the
first round of talks (SALT I) and the beginning of the second (SALT II); B. MÜLLER et al., Unilateral
Declarations, supra note 161.
404
For instance, the decisions of international organizations, most notably the UN Security Council, are
considered to be legally binding: M. A. DRUMBL, Actors and law-making in international
environmental law, supra note 310, 6; J. SOMMER, “Environmental Law-Making by International
Organisations”, ZaöRV 1996, (628) 628.
405
ICJ, Nuclear Test Case (New Zealand & Austria v. France), Judgment of 20 December 1974, §46.
406
ICJ, Frontier Dispute Case (Burkina Faso v. Mali), Judgment of 22 December 1986, §39- 40.
407
INTERNATIONAL LAW COMMISSION (ed.), “Guiding Principles applicable to unilateral declarations
of States capable of creating legal obligations, with commentaries thereto”, Yearbook of the
International Law Commission 2006, vol. II, Part Two (hereinafter: ILC, Guiding Principles to
unilateral declarations), §1.
408
ILC, Guiding Principles to unilateral declarations, supra note 407, §4.
409
Persons holding full powers are enumerated in article 7 of the VCLT, supra note 47.
79
their competence.410 If a UD has created legal obligations for the issuing state, it cannot be
revoked arbitrarily. When assessing the arbitrariness, one should for example take the specific
terms of the UD relating to revocation and the eventual fundamental change in circumstances
into account.411
This technique of UD could be used for the US and/ or the large emitters among the
developing nations. While these countries are not willing to engage in an LBA, they might
agree to endorse the commitments they have stated in a COP decision by means of an UD.412
This would ensure every Party has some sort of legally binding mitigation commitment and
thus provide a solution for the existing deadlock between the AWG-KP and AWG-LCA.413
Although this option is theoretically sound and definitely has the merit of providing a new
insight, it remains hard to see how the issuing of an UD will in practice increase the necessary
trust between Parties. The EU and others can refuse to settle for a UD of the US as means for
them to engage in an LBA, and understandable too. States might theoretically be bound by
their statement, but in case of non-compliance, not more possibilities to enforce it exist than
under the regular law of State responsibility.
B.4.4 Strengths and weaknesses
COP decisions are characterized by certain common features. In the first place, they do not
have to be ratified by parties, thus coming into force immediately. Second, they have a
disputed legal value, which is an asset and disadvantage in the mean time. Countries claiming
that COP decisions are not legally binding are willing to commit to reduction commitments or
nationally appropriate mitigation actions within such decision, while they are unwilling to do
so under an LBA. The obvious setback is that those decisions cannot be judicially enforced.
They nevertheless can and already have had important legal and political influence.414
Additionally, it can be difficult to reach consensus within the COP; and the consensus
requirement entails that any agreement is in fact the lowest common denominator among the
410
ILC, Guiding Principles to unilateral declarations, supra note 407, §4.
ILC, Guiding Principles to unilateral declarations, supra note 407, §10.
412
B. MÜLLER et al., Unilateral Declarations, supra note 161.
413
Ibid.
414
J. WERKSMAN, K. HERBERTSON, The Legal Character of National Actions, supra note 34, 13;
FIELD (ed.), “Briefing note on the ‘legal form’ of a new climate agreement”,
http://www.field.org.uk/files/legal_form_of_a_new_climate_agreement_cs.pdf, (1) 2.
411
80
Parties.415 Furthermore, the only sanction following non-compliance would be the ‘naming and
shaming’.
B.4.5 Negotiating positions
For several developing nations the preferable (or even the only acceptable outcome) consists of
a second commitment period under the Kyoto Protocol and a series of COP decisions under the
LCA-track.416 As COP decisions cannot impose fundamentally new obligations on Parties, the
developing nations would in this situation remain free of reduction commitments.
Nevertheless, we can refer here to the declaration of BASIC ministers, stated above, implying
that they might engage in a binding solution.417
With regards to the preferred outcome of developed countries, certain positions mentioned
under the previous options are brought back under the attention. All developed nations prefer a
comprehensive outcome of the two tracks. In the absence of a comprehensive agreement that
includes all major emitters, the majority will refuse to engage in a new LBA and will likely
prefer a set of COP decisions.
B.4.6 Will there be a gap?
As mentioned amongst the advantages of COP decisions, the latter can come into force
immediately. This important feature can be of great importance to avoid a gap, and will be
elaborated infra in Legal options to ensure that there is no gap (5.1.C.3).
415
L. K. CAMENZULI, “The development of international environmental law at the Multilateral
Environmental Agreements’ Conference of the Parties and its validity”, Environmental Law
Programme Newsletter 2007, http://cmsdata.iucn.org/downloads/newsletter_2007_en.pdf, (1) 6.
416
FCCC/AWGLCA/2010/MISC.2, supra note 308, Submission from Argentina, 9;
FCCC/AWGLCA/2010/MISC.2/Add.1, supra note 344, Submission from India, 10; UNFCCC,
Preparation of an outcome to be presented to the Conference of the Parties for adoption at its sixteenth
session to enable the full, effective and sustained implementation of the Convention through long-term
cooperative action now, up to and beyond 2012, FCCC/AWGLCA/2010/MISC.8/Add.2, (10 December
2010), Submission from G77/China; B. MÜLLER et al., Unilateral Declarations, supra note 161, 5.
417
See supra 5.B.3.3: Negotiating Positions.
81
B.5 Proceed outside the UNFCCC framework
Several countries are cooperating on the issue in smaller ‘clubs’.418 The Asia Pacific
Partnership brings together six countries to cooperate on research and development on new
low-carbon technologies. The Major Economies Forum, created by the Bush administration,
aims to set rules for more flexible reduction policies. The G8 also addresses the issue. Some of
these fragmented approaches might be useful to obtain more concrete action in a quicker
way.419
Nonetheless, many countries420 and authors421 propose that the UNFCCC and the Kyoto
Protocol will remain the most important forum for the negotiations on climate change in the
years to come. This primary position of the UNFCCC can be explained by three reasons. First
of all, over the years, a stable and large institutional framework has been built, with
considerable technical expertise of the UNFCCC Secretariat.422 Secondly, entering into
negotiations to establish a new framework would undoubtedly take much time. This
framework would namely also have to be adopted, signed and ratified. Scientists claim we
simply do not have this time at our disposal, in particular since the outcome of these
negotiations are uncertain.423 A third reason to regard the UNFCCC as the primary place for
negotiations, is the acknowledgement that changing the forum of the negotiations would not
418
R. O. KEOHANE and D. G. VICTOR, “The Regime Complex for Climate Change”, The Harvard
Project
on
International
Climate
Agreements,
Discussion
Paper
2010,
http://belfercenter.ksg.harvard.edu/files/Keohane_Victor_Final_2.pdf, (1) 6; D. BODANSKY, The
Evolution of Multilateral Regimes, supra note 241, 15.
419
D. BODANSKY, The Evolution of Multilateral Regimes, supra note 241, 19.
420
FCCC/AWGLCA/2010/MISC.2, supra note 308, Submission from Bolivia, 14: “Reaffirming that
the United Nations Framework Convention on Climate Change (UNFCCC) constitutes the fundamental
legal framework on climate change”; FCCC/AWGLCA/2010/MISC.2/Add.1, supra note 344,
Submission from India, p. 10: “the UNFCCC (…) should continue to be the basis for further work”
(emphasis added); FCCC/AWGLCA/2010/MISC.3, supra note 340, Submission from South Africa, 9:
“the only legitimate forum for negotiations on climate change is the UNFCCC”.
421
C. SCHWARTE, International climate change litigation, supra note 9, 16; N. K. DUBASH, L.
RAJAMANI, “Beyond Copenhagen: next steps”, Climate Policy 2010, (593) 597; WWF (ed.), “HighLevel Advisory Group on Climate Change Financing: WWF Recommendations”, Recommendation
Paper 2010, http://www.worldwildlife.org/climate/Publications/WWFBinaryitem20101.pdf; H.
WINKLER and J. BEAUMONT, “Fair and effective multilateralism in the post- Copenhagen climate
negotiations”, Climate Policy 2010, vol. 10, (638) 638.
422
A. MACEY, Governance Challenges for Copenhagen, supra note 20, 3; TRANSPARENCY
INTERNATIONAL, “Defining the challenge” in TRANSPARENCY INTERNATIONAL (ed.), Global
Corruption Report: Climate Change, London, Earthscan, 2011, 7.
423
H. E. OTT, Climate Policy Post-2012, supra note 18, 29; N. STERN, The Economics of Climate
Change: The Stern Review, Cambridge, Cambridge University Press, 2007, 712p.
82
change the states’ national interests, and thus neither the outcome of negotiations.424 The latter
counts when Parties want to obtain a comprehensive agreement, not in relation to smaller,
fragmented areas where other fora can be more appropriate.
C. CAN WE AVOID A GAP POST-2012?
Mid-2011, it is appropriate to state that the chance of a new legally binding regime entering
into force by January 2013 is small. Taking into account the required time for ratification and
entry into force of four out of the five options outlined above, it is more likely that the new
regime enters into force delayed. The AWG-KP requested the secretariat to prepare a paper in
order to identify the legal options available to ensure there is no gap between the first and
second commitment period, and the legal consequences and implications of such a gap.425 The
document426 submitted by the secretariat is an important outset.
C.1 Legal options to ensure that there is no gap
C.1.1 Provisional application of a follow-up agreement
Provisional application can be used to apply a treaty or parts of it before it has actually been
ratified and entered into force. This legal technique can be used when a legal regime has to be
established urgently, or to ensure continuity between subsequent treaty regimes.427 Article 25
VCLT states that a treaty or a part of a treaty can be applied provisionally pending its entry
into force, if (a) the treaty itself so provides; or (b) the negotiating States have in some other
manner so agreed. Although there is thus a possibility for provisional application of a treaty
even if this is not included in the treaty itself; the latter remains the most common option, and
there are very few cases in which a governing body decided for provisional application.428
Nonetheless, at least theoretically, it is an option. It would be the most convenient in this
424
W. HARE et al., The Architecture of the Global Climate Regime, supra note 322, 613.
UNFCCC, Consideration of further commitments for Annex I Parties under the Kyoto Protocol,
Draft conclusions proposed by the Chair, Ad Hoc Working Group on Further Commitments for Annex
I Parties under the Kyoto Protocol on its Twelfth session at Bonn, 1–11 June 2010,
FCCC/KP/AWG/2010/L.4, (10 June 2010), §8.
426
Secretariat, Legal considerations relating to a possible gap, supra note 353.
427
LRI, Climate Change Treaty Negotiations Queries, supra note 273, 3.
428
Secretariat, Legal considerations relating to a possible gap, supra note 353, 7.
425
83
regard for Parties to decide on the eventual provisional application at the time of adoption of
the text.
Uncertainty exists to the extent provisional application can provide full legal effect. The
wording “provisional” would exactly impede that this would be equated with full legal effect.
Moreover, the term “application” does not necessarily equal a provisional legal “obligation”.429
But the legal effects of provisional application are in any case stronger than those under article
18 VCLT. This article contains the good faith obligation for states of refraining from acting in
a way that would defeat the object and purpose of a treaty after having signed, or having
expressed its intention to be bound, it but prior to the treaty’s entry into force. If the legal
effect of provisional application would be nothing more than this good faith obligation, there
would be no point in installing a different regime. Moreover, in case a state wants to terminate
the provisional application, it has to make a notification to the other Parties (VCLT, article
25.2). In case there were no obligations attached to provisional application, the regime would
be ‘free’ and no notification would have been made.430 Finally, in previous treaties with
provisional application, states also considered themselves to be bound.431 The most wellknown example is the 1947 General Agreement on Tariffs and Trade that has been applied
provisionally by a Protocol of Provisional Application.432 Notwithstanding the discussion on
full legal effect, at least “there can be no doubt that such clauses have legal effect and bring the
treaty into force on a provisional basis.”433
If Parties decide to provide their arrangement provisionally, there is thus a legally binding
effect. But the fundamental principle of state consent in order to be bound is also applicable in
this situation. Parties can decide freely whether or not they want to apply a treaty
provisionally. In case they decided to do so, the fulfilment of the legal obligations is no longer
voluntary.434 In this regard, attention must also be paid to the possible restrictions in domestic
429
Legal Expert Group EU (LEX), “Provisional application of treaties”, Background Paper 2010, on
file with author, (1) (hereinafter: LEX, Provisional application of treaties), 2.
430
LEX, Provisional application of treaties, supra note 429, 2.
431
Secretariat, Legal considerations relating to a possible gap, supra note 353, 7.
432
But in the previous cases where treaties were applied provisionally, this was never the same as full
legal effect: LEX, Provisional application of treaties, supra note 429, 6.
433
INTERNATIONAL LAW COMMISSION (ed.), “Draft Articles on the Law of Treaties with
Commentaries”, Yearbook of the International Law Commission 1966, vol. II, 210.
434
See supra; 5. A: A legally binding regime?
84
law. It is possible that some provisions cannot be applied provisionally for reasons of
inconsistency with domestic law.435 In this case, it might be wise to limit provisional
application to provisions that do not pose such problem, in order to avoid a split regime.436
Another related option is to include ‘prompt start’ provisions into the new agreement. The best
example of this technique is the prompt start of the CDM before the actual entry into force of
the Kyoto Protocol.437 The COP adopted procedures and modalities, and assumed the
responsibilities of the CMP for a limited period of time.
C.1.2 Extending the first commitment period under the Kyoto Protocol
A second option contemplated by the Secretariat is the extension of the first commitment
period. This could take the form of the extension of the period until for example 2014, or the
application of the same QELROs for a period following the 1st commitment period, for
example 2013-2014.438 Although these options are conceptually different, in fact they come
down to the same result.
An extension of the first commitment period would require amendments to Annex B and
relevant provisions of the Kyoto Protocol. As stated above, such amendments take time to
enter into force, making provisional application necessary. According to the secretariat, such
provisional application ‘could be included either in the amendment to the Kyoto Protocol itself
or in a CMP decision adopting such amendments in accordance with Articles 20 and 21 of the
Kyoto Protocol’.439 Provisional application of amendments extending the first commitment
period commitments might be easier to accommodate in domestic law, as these commitments
do not impose ‘new’ obligations on the Parties.440
Another option to extend the first commitment period would be by means of a decision under
article 13.4 of the Kyoto Protocol. This article is the Kyoto counterpart of article 7 UNFCCC,
including the mandate of the CMP. This option thus resembles the option in C.1.3, and the
comments with regard to the legal value of COP decisions apply similarly.
435
Secretariat, Legal considerations relating to a possible gap, supra note 353, 7.
LEX, Provisional application of treaties, supra note 429, 4.
437
UNFCCC, Decision 17/CP.7, Modalities and procedures for a clean development mechanism as
defined in Article 12 of the Kyoto Protocol, in Report of the Conference of the Parties on its Seventh
Session, held at Marrakesh from 29 October to 10 November, Addendum Part Two: Action taken by
the Conference of the Parties, FCCC/CP/2001/13/Add.2 (21 January 2002).
438
Secretariat, Legal considerations relating to a possible gap, supra note 353, 8.
439
Secretariat, Legal considerations relating to a possible gap, supra note 353, 8.
440
Ibid.
436
85
C.1.3 Proceeding through COP decisions while working towards an LBA
In the Cancun Agreements, several core elements of the Bali Action Plan have been
elaborated. Nevertheless, the institutional framework of the Green Climate Fund, the
Technology Mechanism and the Adaptation Committee, guidelines to transparency and
regularity of emissions reporting by developed and developing nations remain to be solved.441
This development could be made through a series of COP decisions and guidelines.
C.2 Legal implications of a gap
C.2.1 Keeping the flexible mechanisms into force after the first commitment
period?
C.2.1.1
In general
The absence of consensus among Parties about a second commitment period threatens to create
a gap in the functioning of the Kyoto Protocol’s mechanisms. Nevertheless, it is of utmost
importance to encourage investors to fund existing and new projects, and to give clear signals
to governments that are trying to construct a climate-friendly policy.442
First, it must be noted that a Party may, until the hundredth day after the date set by the CMP
for the completion of the expert review process under Article 8 of the Protocol relating to the
first commitment period, continue to acquire, and other Parties may transfer to such Party,
units under Articles 6, 12 and 17 of the Protocol.443 During this time, known as the ‘true-up
period’, Parties may continue to use the mechanisms to attain their goals under article 3.444 The
period of 100 days starts after the date set by the CMP, presumably in the end of 2014.445
441
Cartagena paper, Legal options, supra note 309, 3.
CLIMATE FOCUS (ed.), “Joint Implementation: Legal issues in a post-2012 period”, Briefing Note
2010, http://jiactiongroup.com/documents/JIPost12_LegalIssues.pdf (hereinafter: CLIMATE FOCUS,
Joint Implementation), 1.
443
Decision 27/CMP.1, supra note 159, Annex, section XIII, 101.
444
Secretariat, Legal considerations relating to a possible gap, supra note 353, 9.
445
Annex I countries submit their annual report for 2012 in 2014. Once all the reports have been
submitted to the international review and compliance procedures, the true-up period starts. The exact
date for the true-up period will be determined by the CMP: Government of Australia,
http://www.climatechange.gov.au/publications/cprs/white-paper/~/media/publications/whitepaper/V2Appendix_C-pdf.ashx.
442
86
Therefore, this true-up period is expected to end mid-2015.446 Discussions around JI activities
in the true-up period arose at some point. But the JI Action Group claims, and it appears
correct, that true-up activities are “not post-2012 matters as Commitment Period 1 Assigned
Amount Units are turned into Commitment Period 1 Emission Reduction Units”.447
After the true-up period, the situation is less clear. Although the provisions regarding the
flexible mechanisms do not terminate by themselves, many of them are inextricably linked to a
commitment period. Article 3, containing the reduction obligations for Annex I Parties, can no
longer apply in the absence of a commitment period. This fact has its influence on the usage of
the flexible mechanisms. The three flexible mechanisms will in turn be investigated.
C.2.1.2
Joint Implementation
Article 6.1 of the Kyoto Protocol allows joint implementation “For the purpose of meeting its
commitments under Article 3”. This JI occurs through the transfer of emission reduction units.
As noted by the Secretariat, the decisions taken by the COP and CMP with regards to the
practical elaboration of joint implementation do not refer explicitly to the existence of a
commitment period.448 The Joint Implementation Supervisory Committee (JISC) claimed:
“JI is part of the Kyoto Protocol, and although the emission targets of Annex I Parties are
negotiated on a commitment period by commitment period basis, JI is designed as a long-term
mechanism that continues from one period to the next, and is not tied to specific commitment
446
L.
DE
KLERK,
“Bridging
the
gap”,
Point
Carbon
2010,
(28)
http://jiactiongroup.com/documents/2010TradingCarbonJointimplementation.pdf (hereinafter: L. DE
KLERK, Bridging the gap), p. 28; CLIMATE FOCUS, Joint Implementation supra note 442, 2.
447
CLIMATE FOCUS (ed.), “CMP 6 Cancun: The JI Decision Debrief”, (22 December 2010),
http://www.jiactiongroup.com/documents/CMP6CancunJIDecisionv1.022Dec10.pdf, (1) 2.
448
For example, UNFCCC, Decision 16/CP.7, Guidelines for the implementation of article 6 of the
Kyoto Protocol, in Report of the Conference of the Parties on its seventh session, held at Marrakesh
from 29 October to 10 November2001, Addendum Part Two: Action taken by the Conference of the
Parties, FCCC/CP/2001/13/Add.2, (21 January 2002); UNFCCC, Decision 3/CMP.5, Guidance on the
implementation of article 6 of the Kyoto Protocol, in Report of the Conference of the Parties serving as
the meeting of the Parties to the Kyoto Protocol on its fifth session, held in Copenhagen from 7 to 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).
87
periods. This continuity applies to all aspects of JI, including the determination of projects,
issuance of ERUs, and accreditation of independent entities.”449
Nevertheless, as there will be no assigned amount if this is not established in a second
commitment period, there will consequently be no emission reduction units,450 and
presumably, this means the suspension of activities in the field of JI.451 The alternative reading
provided by the Secretariat implies that the absence of commitments under article 3 would
solely imply the impossibility to transfer or acquire reduction units, but not to generate
them.452 Similar to this reasoning, the JISC recommended with regard to the post-2012 period:
“Allow emission reductions and removal enhancements, achieved by existing and new JI
projects between 1 January 2013 and the end of the true-up period, or the entry into force of
new commitments, whichever is the sooner, to be issued by host Parties as ERUs by
converting AAUs or RMUs from the first commitment period.”453
Could these units then be traded in case a second commitment period is established? The JIAG
claims so, but as the UNFCCC Secretariat itself admits; it is unclear on which legal basis a
Party could generate reduction units without an assigned amount being present.454 As there is
no certainty that a second commitment period, or even more, that a top-down approach with
emission reductions will enter into force, it seems a too big risk allowing people to generate
ERUs without being certain they will be able to trade them afterwards. In case a second
commitment period is concluded, amendments to Decision 13/CMP.1, §29 are necessary to
convert AAUs into ERUs for the second commitment period.455
449
UNFCCC, Report on Experience with the Verification Procedure under the Joint Implementation
Supervisory Committee and possible Improvements in the Future Operation of Joint Implementation, in
Annual report of the Joint Implementation Supervisory Committee to the Conference of the Parties
serving as the meeting of the Parties to the Kyoto Protocol, FCCC/KP/CMP/2010/9, (16 November
2010) (hereinafter: JISC Report), §78.
450
Since ERUs need to be converted from either AAUs or RMUs, which cannot happen without AA: see
supra, 2.C.2: Commitments ; W. GELDHOF, T. DERUYTTER, “The Copenhagen Accord and the Clean
Development Mechanism, supra note 143, 473.
451
LRI, Legal options to avoid a gap, supra note 172, 5.
452
Secretariat, Legal considerations relating to a possible gap, supra note 353, 12.
453
JISC Report, supra note 449, §123.
454
Secretariat, Legal considerations relating to a possible gap, supra note 353, 12.
455
Legal Expert Group EU (LEX), “Follow-up to the UNFCCC Secretariat’s “Legal considerations
relating to a possible gap between the first and subsequent commitment periods”
FCCC/KP/AWG/2010/10”, 2010, on file with author, (1) 6.
88
C.2.1.3
The Clean Development Mechanism
The Clean Development Mechanism provided in article 12 of the Kyoto Protocol is of the
three mechanisms the most likely to remain applicable without second commitment period. As
with JI, the decisions from the COP and CMP relating to the CDM are neither explicitly linked
to the existence of a commitment period, nor do they contain an end date.456
But the main argument in favour of the continued application of the CDM, is its multiple goal.
Aside from assisting Annex I Parties in achieving compliance with their commitments under
article 3, the mechanism is also purposed to assist Parties not included in Annex I in achieving
sustainable development and in contributing to the ultimate objective of the Convention
(Kyoto Protocol, article 12.2). If these three distinct goals would have to be fulfilled
cumulatively, then the absence of emission reductions under article 3 would ‘frustrate the
purpose of the CDM and argue against its continuation beyond the true-up period’.457 But,
from a textual reading it cannot be derived that such cumulative fulfilment would be necessary.
The Secretariat submits that in case projects can suffice with meeting some, and not all
elements in the purpose, the absence of reduction commitments under article 3 would not
obstruct the continuation of the CDM.458 This would imply that in case CDM projects
contribute to the ultimate objective of the Convention, they could be registered and validated
irrespective of a second commitment period.459 Since the text does not encompass a preference
for one of the options, Parties can choose for the latter, most pragmatic interpretation.
456
For example: UNFCCC, Decision 12/CP.10, Guidance relating to the clean development
mechanism, in Report of the Conference of the Parties on its tenth session, held at Buenos Aires from 6
to 18 December 2004, Addendum Part Two: Action taken by the Conference of the Parties at its tenth
session, FCCC/CP/2004/10/Add.2, (19 April 2005); UNFCCC, 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, held in Copenhagen from 7 to 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).
457
Secretariat, Legal considerations relating to a possible gap, supra note 353, 13.
458
Ibid.
459
LRI, Legal options to avoid a gap, supra note 172, 6; LEGAL RESPONSE INITIATIVE (ed.),
“Temporary extension of the Kyoto Protocol and relationship with the flexible mechanisms”, (22 May
2010),
http://www.legalresponseinitiative.org/download/Briefing%20note%20%20Temporary%20extension%20of%20the%20KP%20and%20the%20Flexible%20Mechanisms%20(
22%20May%202010).pdf, (1) 4.
89
However, if the mechanism remains in force after 2012 but no agreement with reduction
targets is concluded, the mechanism might die a natural death: If there is not enough pressure
to comply, there is possibly no demand for CER credits.460
This can be resolved if Parties decide to use the CDM for meeting their obligations under
domestic law as.461 For example, the EU has adopted legislation that includes the possibility of
launching new CDM projects after 2012.462 In the third phase of the European Emission
Trading System (2013-2018), the usage of CERs to meet reduction obligations is still allowed.
Nevertheless, the use of those credits is limited both quantitatively as qualitatively.463
C.2.1.4
Emission Trading
Article 17 stipulates that Annex I Parties may participate in emissions trading “for the
purposes of fulfilling their commitments under Article 3”. In absence of a second commitment
period, there is no Assigned Amount, hence no assigned amounts units. Therefore, there can
presumably be no trading under article 17, except for those transactions during the true-up
period.464
Out of the three flexible mechanisms, emission trading appears the least plausible to remain
into force after 2012. This system is namely solely a trade system, allowing parties to “buy
off” their emission surpluses. Since it is not even necessary to engage in projects that decrease
emissions -in comparison to the other two flexible mechanisms-, there appears to be no point
in engaging in emission trading without Assigned Amount.
What does remain possible, is using the concept to meet reduction obligations based on
domestic legislation. The EU will continue to do so in the context of its Emission Trading
System.
460
POINT CARBON (ed.), “Kyoto Dead; Long live Cancun?”, Thomson Reuters (11 April 2011),
http://www.pointcarbon.com/aboutus/pressroom/pressreleases/1.1527787.
461
D. BODANSKY, The Evolution of Multilateral Regimes, supra note 241, 18.
462
Directive 2003/87/EC of the European Parliament and of the Council of October 13, 2003
establishing a scheme for greenhouse gas emission allowance trading within the Community and
amending Council Directive 96/61/EC, as amended by Directive 2009/29/EC of the European
Parliament and of the Council of April 23, 2009 amending Directive 2003/87/EC so as to improve and
extend the greenhouse gas emission allowance trading scheme of the Community (2003) OJ L275/32
(hereinafter: Revised Allowance Trading Directive).
463
L. DE KLERK, Bridging the gap, supra note 446, 29; Revised Allowance Trading Directive, supra
note 462.
464
Secretariat, Legal considerations relating to a possible gap, supra note 353, 13; LRI, Legal options
to avoid a gap, supra note 172, 5.
90
C.2.2 Compliance mechanism
The Compliance System is largely included in Decision 27/CMP.1.465 The CMP Decision
indicates as the objective of the compliance mechanism “to facilitate, promote and enforce
compliance with the commitments under the Protocol.”466 It thus intends to ensure overall
compliance with the terms of the Kyoto Protocol, not only with the reduction commitments
under article 3. Nevertheless, the reduction commitments of article 3 constitute ‘the bulk’ of
the Kyoto Protocol obligations, and many other provisions are related to it. In the first place,
the powers of the Enforcement Branch to ensure compliance are seriously endangered if no
second commitment period is concluded. As already stated supra, the most ‘severe’
punishment, the deduction from a party’s assigned amount for the second commitment period
of an amount proportionate to its excess emissions cannot be executed in case no subsequent
commitment period is concluded. According to the Secretariat, whether certain parts of the
mandate of the Compliance Committee will remain in force, depends on whether the parties
agree to keep the underlying obligations in force during a gap.467 For instance, the obligation to
keep a national system for the estimation of anthropogenic emissions could be maintained even
without a specific reduction target. It appears a good option to maintain such obligations, since
there is a procedural framework, and institutions that can control compliance with it. However,
it is uncertain whether certain Annex I countries could waive their aversion of against the
Kyoto Protocol to agree to this.
465
As elaborated on supra, 2.C.4: The Compliance Mechanism.
Decision 27/CMP.1, supra note 159, Annex, 93.
467
Secretariat, Legal considerations relating to a possible gap, supra note 353, 13-14.
466
91
6. CONCLUSION
In this thesis, I aimed to provide an overview of the 2012-problem that exists within the
climate change negotiations. After examining what has been agreed on so far, the different
legal options to proceed have been examined. Here follows a brief conclusion and prospect to
the future regime.
Seen the negotiating positions and bottom lines from several countries, it is unlikely that a
comprehensive top-down agreement will be concluded in time to avoid a gap after the end of
2012. In general, developing nations have a negative stance towards an LBA with a top-down
architecture. They still uphold that developed nations should take the lead in combating
climate change and will probably refuse to take on legally binding reduction obligations if not
all developed nations, including the US, have committed to such obligations first. Nonetheless,
engaging especially the large emitters among the developing nations will be crucial to the
ecological success of any future regime, and to the achievement of the UNFCCC’s ultimate
objective. Unfortunately, the US, Japan, Russia and Canada already rejected a continuation of
the Kyoto Protocol. They made their future commitments conditional upon a comprehensive
agreement including also binding commitments for large developing nations. The Copenhagen
Conference made this deadlock particularly clear.
The EU for its part rightly realises that a second commitment period to the Protocol is
essential, maybe even a prerequisite to many developing nations for any global agreement.
Admittedly, it can engage in a second commitment period under the Kyoto Protocol, together
with a ‘coalition of the willing’ and developing nations.
92
The most probable outcome of the two negotiating tracks from my point of view entails a
series of COP-decisions under the LCA-track, whether or not accompanied with a second
commitment period under the KP-track.
Although a general cap-and-trade, top-down approach as we know it from the Kyoto Protocol
and other MEAs was the preferred outcome for many, a new agreement with a bottom-up
approach would not per se entail a reason for pessimism. What matters is that the
commitments within this new approach are sufficiently ambitious, and that countries feel the
need to make comparable efforts as others states do. International pressure on countries that do
not commit voluntarily must be high. To this end, research by the IPCC and sufficient public
attention remain crucial. Furthermore, the commitments made within any agreement must be
subjected to international monitoring.
In case no second commitment period under the KP-track is concluded; Parties to the Kyoto
Protocol are nevertheless recommended to provide clarity on the future of CDM and JI
projects, and on the compliance system. These mechanisms are elaborated to a very high
degree, and can even without reduction commitments under article 3 of the Kyoto Protocol be
of significant importance.
At least for now, COP decisions containing voluntarily submitted commitments are the
preferred outcome for several large nations. Consequently, it is very likely that this is the path
the climate change regime is on for the years to come. This does not preclude the possibility
that within a few years, positions have changed enough to conclude an LBA. Nonetheless all
the foregoing, many people (including myself) cannot shake off the thought that the bottom-up
approach, installed in Copenhagen and maintained in Cancun, constitutes a step backwards
towards Kyoto; especially for a problem that is recognised by many as the greatest
environmental challenge of our time.
93
NEDERLANDSE SAMENVATTING
Klimaatverandering is het resultaat van een teveel aan broeikasgassen in onze atmosfeer. De
uitstoot van deze gassen door de mens is sinds 1970 met minstens 70% gestegen.
Broeikasgassen verhinderen dat de energie van de zon na het bereiken van het aardoppervlak
teruggekaatst wordt naar de ruimte; ze houden de energie gevangen binnen de atmosfeer van
de aarde. De gevolgen van de klimaatverandering zijn door de wetenschap afdoende
beschreven, en kunnen bij ongewijzigd beleid zeer ernstig worden.
Om aan deze milieuproblematiek tegemoet te komen, sloten de partijen bij het Kaderverdrag
inzake Klimaatverandering van de Verenigde Naties in 1997 het Kyoto Protocol. Dit Protocol
legt bindende reductieverplichtingen van broeikasgassen op aan 41 ontwikkelde landen, de
zogenaamde Annex I landen, gedurende een eerste verplichtingenperiode die loopt van 2008
tot 2012. Aan het einde van deze periode zullen de Annex I landen hun naleving van deze
verplichtingen moeten aantonen.
Deze regeling is sinds zijn begindagen onderhevig aan kritiek: de Verenigde Staten van
Amerika en de ontwikkelende landen, waaronder enkele grote uitstoters, hebben geen
reductieverplichtingen onder het Protocol, er zal slechts een kleine uitstootreductie door
verwezenlijkt worden en het is enkel een korte-termijn oplossing.
Vooral over dat laatste nadeel wordt de laatste jaren hevig onderhandeld. Een nieuwe regeling
moet in werking treden op 1 januari 2013, of een leemte ontstaat tussen de verschillende
verplichtingenperiodes.
Discussies over hoe die regeling eruit moet zien, zijn voornamelijk discussies tussen
ontwikkelde en ontwikkelende landen. Deze laatste menen dat de ontwikkelde landen hun
historische
verantwoordelijkheid
nog
niet
volbracht
hebben,
en
weigeren
reductieverplichtingen op zich te nemen zolang niet alle ontwikkelde landen (dus ook de
Verenigde Staten) met sterke verplichtingen voor zichzelf over de brug komen.
De ontwikkelde landen daarentegen zijn van mening dat een oplossing zonder enkele grote
uitstoters onder de ontwikkelingslanden geen enkel ecologisch verantwoord effect zou hebben,
en enkel zou leiden tot een competitief economisch nadeel voor hen. Sommigen onder hen
94
hebben aangegeven niet in een tweede verplichtingenperiode onder het Kyoto Protocol te
zullen stappen.
De verschillende mogelijkheden met betrekking tot een regeling post-2012 werden in deze
thesis besproken. De partijen kunnen overgaan tot amendering van het Kyoto Protocol
(bijvoorbeeld om een tweede verplichtingenperiode af te sluiten), amendering van het
Klimaatverdrag (bijvoordeeld om grote uitstoters onder de ontwikkelende landen onder de
Annex I groep te plaatsen), het afsluiten van een geheel nieuw protocol, het nemen van
‘besluiten’ door de vergadering van partijen en zelfs tot het sluiten van overeenkomsten buiten
het kader van het Klimaatverdrag.
Elk van deze opties heeft zijn respectievelijke voor- en nadelen. Alle opties die een wijziging
van verdragsrechtelijke verplichtingen inhouden, worden echter gekenmerkt door een
ratificatie- procedure. Deze noodzaak om verdragsrechtelijke verplichtingen in nationaal recht
om te zetten vertraagt deze opties aanzienlijk. Ze zouden dan ook gecombineerd moeten
worden met een verdragsrechtelijke procedure om een ‘leemte’ tussen verbintenissen te
voorkomen.
De mogelijkheden die onderzocht werden om de leemte te voorkomen, worden hier kort
opgesomd. In de eerste plaats kunnen partijen besluiten hun overeenkomst reeds voor de
effectieve inwerkingtreding voorlopig toe te passen. Daarnaast kan men besluiten de eerste
verplichtingenperiode verlengd toe te passen, bijvoorbeeld tot 2014 in plaats van tot 2012. Ten
slotte kan men voorlopig werken door middel van voormelde ‘besluiten’ van de vergadering,
tot wanneer meer overeenkomst bestaat tussen de partijen over een nieuw juridisch kader.
Alhoewel veel landen en auteurs hun voorkeur voor een juridisch bindend akkoord voor de
post-2012 periode hebben uitgesproken, is het eerder onwaarschijnlijk dat men tijdig tot een
dergelijk akkoord zal komen. In de volgende conferenties zal dus hoogstwaarschijnlijk verder
gewerkt worden aan de hand van besluiten in afwachting ervan.
95
INDEX OF AUTHORITIES
A. LEGISLATION
A.1 Treaties
United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc. No.
102-38, 1771 U.N.T.S. 107.
Kyoto Protocol to the United Nations Framework Convention on Climate Change, December
10, 1997, 37 I.L.M. 22.
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331; reprinted in 8
I.L.M. 679.
Montreal Protocol on Substances that Deplete the Ozone Layer, September 16, 1987, 1513
U.N.T.S. 323.
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their
Disposal, March 22, 1989, 1673 U.N.T.S.126.
United Nations, Statute of the International Court of Justice, 15 U.N.C.I.O. 1945, Annex.
A.2 Resolutions
Resolution 43/53 of the United Nations General Assembly (6 December 1988), UN Doc.
A/RES/43/53 (1988).
Resolution 44/207 of the United Nations General Assembly (22 December 1989), UN Doc.
A/RES/44/207 (1989).
Resolution 45/212 of the United Nations General Assembly (21 December 1990), UN Doc.
A/Res. 45/212 (1990).
Resolution 64/73 of the United Nations General Assembly, (29 January 2010), UN Doc. A/RES/64/73
(2010).
Resolution 65/159 of the United Nations General Assembly, (4 March 2011) UN Doc. A/RES/65/159
(2011).
A.3 Other
Byrd-Hagel Resolution, 105th Congress, 1st Session, S. Res. 98.
Directive 2003/87/EC of the European Parliament and of the Council of October 13, 2003
establishing a scheme for greenhouse gas emission allowance trading within the Community
and amending Council Directive 96/61/EC, as amended by Directive 2009/29/EC of the
96
European Parliament and of the Council of April 23, 2009 amending Directive 2003/87/EC so
as to improve and extend the greenhouse gas emission allowance trading scheme of the
Community (2003) OJ L275/
B. UNFCCC DOCUMENTS
B.1 COP Decisions
UNFCCC, Decision 1/CP.1: The Berlin Mandate: Review of the adequacy of Article 4,
paragraph 2(a) and (b), of the Convention, including proposals related to a protocol and
decisions on follow-up, in Report of the Conference of the Parties on its First Session, held at
Berlin from 28 March to 7 April 1995, Addendum Part Two: Action Taken by the Conference
of the Parties at its first session, FCCC/CP/1995/7/Add.1, (6 June 1995).
UNFCCC, Decision 14/CP.1, Institutional Linkage of the Convention Secretariat to the United
Nations, in Report of the Conference of the Parties on its first session, held at Berlin from 28
March to 7 April 1995, Addendum Part Two: Action taken by the Conference of the Parties at
its first session, FCCC/CP/1995/7/Add.1, (6 June 1995).
UNFCCC, Decision 1/CP.3, Adoption of the Kyoto Protocol to the United Nations Framework
Convention on Climate Change, in Report of the Conference of the Parties on its Third
Session, held at Kyoto, from 1 to 11 December 1997, Addendum, Part Two, Action Taken by
the Conference of the Parties, FCCC/CP/1997/7/Add. 1, (25 March 1998).
UNFCCC, Marrakech Accords, in Report of the Conference of the Parties on its Seventh
Session, held at Marrakesh from 29 October to 10 November 2001, Addendum Part Two:
Action Taken by the Conference of the Parties, FCCC/CP/2001/13/Add.1, (21 January 2002).
UNFCCC, Decision 16/CP.7, Guidelines for the implementation of article 6 of the Kyoto
Protocol, in Report of the Conference of the Parties on its seventh session, held at Marrakesh
from 29 October to 10 November2001, Addendum Part Two: Action taken by the Conference
of the Parties, FCCC/CP/2001/13/Add.2, (21 January 2002).
UNFCCC, Decision 17/CP.7, Modalities and procedures for a clean development mechanism
as defined in Article 12 of the Kyoto Protocol, in Report of the Conference of the Parties on its
Seventh Session, held at Marrakesh from 29 October to 10 November, Addendum Part Two:
Action taken by the Conference of the Parties, FCCC/CP/2001/13/Add.2, (21 January 2002).
UNFCCC, Decision 24/CP.7: Procedures and mechanisms relating to compliance under the
Kyoto Protocol, in Report of the Conference of the Parties on its Seventh session, held at
Marrakesh from 29 October to 10 November 2001, Addendum Part Two: Action taken by the
Conference of Parties, FCCC/CP/2001/13/Add.3, (21 January 2002).
UNFCCC, Decision 12/CP.10, Guidance relating to the clean development mechanism, in
Report of the Conference of the Parties on its tenth session, held at Buenos Aires from 6 to 18
December 2004, Addendum Part Two: Action taken by the Conference of the Parties at its
tenth session, FCCC/CP/2004/10/Add.2, (19 April 2005).
UNFCCC, Decision 1/CP.11, Dialogue on long-term cooperative action to address climate
change by enhancing implementation of the Convention, in Report of the Conference of the
Parties on its eleventh session, held at Montreal from 28 November to 10 December 2005,
97
Addendum Part Two Action Taken by the Conference of the Parties at its eleventh session,
FCCC/CP/2005/5/Add.1, (30 March 2006).
UNFCCC, Decision 1/CP.13, Bali Action Plan, in Report of the Conference of the Parties on
its thirteenth session held in Bali from 3 to 15 December 2007, Addendum Part Two: Action
taken by the Conference of the Parties at its thirteenth session, FCCC/CP/2007/6/Add.1, (14
March 2008).
UNFCCC, Decision 1/CP.15, Outcome of the work of the Ad Hoc Working Group on Longterm Cooperative Action under the Convention, in Report of the Conference of the Parties on
its fifteenth session, held at Copenhagen from 7 to 19 December 2009, Addendum Part Two:
Action taken by the Conference of the Parties at its fifteenth session,
FCCC/CP/2009/11/Add.1, (30 March 2010).
UNFCCC, Decision 2/CP.15, Copenhagen Accord, in Report of the Conference of the Parties
on its fifteenth session, held at Copenhagen from 7 to 19 December 2009, Addendum Part
Two: Action taken by the Conference of the Parties at its fifteenth session,
FCCC/CP/2009/11/Add.1, (30 March 2010).
UNFCCC, Decision 3/CP.15, Amendment to Annex I to the Convention, in Report of the
Conference of the Parties on its fifteenth session, held in Copenhagen from 7 to 19 December
2009, Addendum Part Two: Action taken by the Conference of the Parties at its fifteenth
session, FCCC/CP/2009/11/Add.1, (30 March 2010).
UNFCCC, Decision 1/CP.16, The Cancun Agreements: Outcome of the work of the Ad Hoc
Working Group on Long-term Cooperative Action under the Convention, in Report of the
Conference of the Parties on its sixteenth session, held at Cancun from 29 November to 10
December 2010, Addendum Part Two: Action taken by the Conference of the Parties at its
sixteenth session, FCCC/CP/2010/7/Add.1, (15 March 2011).
B.2 CMP Decisions
UNFCCC, 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, in Report of the Conference of the Parties serving as the meeting of the Parties to the
Kyoto Protocol on its first session, held at Montreal from 28 November to 10 December 2005,
Addendum Part Two: Action taken by the Conference of the Parties serving as the meeting of
the Parties to the Kyoto Protocol at its first session, FCCC/KP/CMP/2005/L.8/Rev.1, (10
December 2005).
UNFCCC, Decision 13/CMP.1, Modalities for the accounting of assigned amounts under
Article 7, paragraph 4, of the Kyoto Protocol, in Report of the Conference of the Parties
serving as the meeting of the Parties to the Kyoto Protocol on its first session, held at Montreal
from 28 November to 10 December 2005, Addendum Part Two: Action taken by the
Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol at its first
session, FCCC/KP/CMP/2005/8/Add.2, (30 March 2006).
UNFCCC, Decision 27/CMP.1, Procedures and mechanisms relating to compliance under the
Kyoto Protocol, in Report of the Conference of the Parties serving as the meeting of the Parties
to the Kyoto Protocol on its first session, held at Montreal from 28 November to 10 December
2005, Addendum Part Two: Action taken by the Conference of the Parties serving as the
meeting of the Parties to the Kyoto Protocol, FCCC/ KP/CMP/2005/8/Add.3, (30 March 2006.
98
UNFCCC, Decision 4/CMP.2, Compliance Committee, in Report of the Conference of the
Parties serving as the meeting of the Parties to the Kyoto Protocol on its second session, held
at Nairobi from 6 to 17 November 2006, Addendum Part Two: Action taken by the Conference
of the Parties serving as the meeting of the Parties to the Kyoto Protocol,
FCCC/KP/CMP/2006/10/Add.1, (4 March 2007).
UNFCCC, Decision 7/CMP.2, Review of the Kyoto Protocol pursuant to its Article 9, in
Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto
Protocol on its second session, held at Nairobi from 6 to 17 November 2006, Addendum, Part
Two: Action taken by the Conference of the Parties serving as the meeting of the Parties to the
Kyoto Protocol at its second session, FCCC/KP/CMP/2006/10/Add.1, (2 March 2007).
UNFCCC, Decision 4/CMP.3, Scope and content of the second review of the Kyoto Protocol
pursuant to its Article 9, in Report of the Conference of the Parties serving as the meeting of
the Parties to the Kyoto Protocol on its third session, held in Bali from 3 to 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).
UNFCCC, Decision 4/CMP.4: Compliance Committee, in Report of the Conference of the
Parties serving as the meeting of the Parties to the Kyoto Protocol on its fourth session, held at
Poznan from 1 to 12 December 2008, Addendum Part Two: Action taken by the Conference of
the Parties serving as the meeting of the Parties to the Kyoto Protocol,
FCCC/KP/CMP/2008/11/Add.1, (19 March 2009).
UNFCCC, Decision 1/CMP.5, Outcome of the work of the Ad Hoc Working Group on Further
Commitments for Annex I Parties under the Kyoto Protocol, in Report of the Conference of the
Parties serving as the meeting of the Parties to the Kyoto Protocol on its fifth session, held in
Copenhagen from 7 to 19 December 2009, Addendum Part Two: Action taken by the
Conference of the Parties serving as the meeting of the Parties at its fifth session, FCCC/
KP/CMP/2009/21/Add.1, (30 March 2010).
UNFCCC, Decision 2/CMP.5, Further guidance relating to the clean development mechanism,
Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto
Protocol on its fifth session, held in Copenhagen from 7 to 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).
UNFCCC, Decision 3/CMP.5, Guidance on the implementation of article 6 of the Kyoto
Protocol, in Report of the Conference of the Parties serving as the meeting of the Parties to the
Kyoto Protocol on its fifth session, held in Copenhagen from 7 to 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).
UNFCCC, Decision 1/CMP.6, The Cancun Agreements: Outcome of the work of the Ad Hoc
Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its
fifteenth session, in Report of the Conference of the Parties serving as the meeting of the
Parties to the Kyoto Protocol on its sixth session, held in Cancun from 29 November to 10
December 2010, Addendum Part Two: Action taken by the Conference of the Parties serving
as the meeting of the Parties to the Kyoto Protocol at its sixth session,
FCCC/KP/CMP/2010/12/Add.1, (15 March 2011).
99
B.3 UNFCCC- Submissions from Parties
UNFCCC, Preparatory Work Needed for the Fourth Session of the Conference of the Parties
on the Items Listed in Decision 1/CP.3, Paragraph 5, Submissions by Parties, Addendum,
FCCC/SB/1998/MISC.1/Add.3, (5 June 1998).
UNFCCC, Matters related to Decision 1/CP.3 Paragraph 5, Compilation of Submissions by
Parties, FCCC/CP/1998/MISC.7, (7 October 1998).
UNFCCC, Proposal from Saudi Arabia to amend the Kyoto Protocol, FCCC/KP/CMP/2005/2,
(26 May 2005).
UNFCCC, Ideas and proposals on the elements contained in paragraph 1 of the Bali Action
Plan, Submissions from Parties, FCCC/AWGLCA/2008/Misc.5/Add.2, (Part I), (10 December
2008).
UNFCCC, Ad Hoc Working Group on Long-Term Cooperative Action under the Convention,
Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan,
Submissions from Parties, FCCC/AWGLCA/2009/MISC.1, (13 March 2009).
UNFCCC, Draft protocol to the Convention prepared by the Government of Japan for adoption
at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/3, (13 May 2009).
UNFCCC, Proposal from Malta to amend Annex I to the Convention, FCCC/CP/2009/2 (13
May 2009).
UNFCCC, Draft protocol to the Convention presented by the Government of Tuvalu under
Article 17 of the Convention, FCCC/CP/2009/4, (5 June 2009).
UNFCCC, Draft protocol to the Convention prepared by the Government of Australia for
adoption at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/5, (6 June
2009).
UNFCCC, Draft implementing agreement under the Convention prepared by the Government
of the United States of America for adoption at the fifteenth session of the Conference of the
Parties, FCCC/CP/2009/7, (6 June 2009).
UNFCCC, Draft protocol to the Convention prepared by the Government of Costa Rica to be
adopted at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/6, (8 June
2009).
UNFCCC, Proposal from the Czech Republic and the European Commission on behalf of the
European Community and its member States for an amendment to the Kyoto Protocol,
Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol,
Copenhagen, 7–18 December 2009, FCCC/KP/CMP/2009/2, (11 June 2009).
UNFCCC, Proposal from New Zealand for an amendment to the Kyoto Protocol, Conference
of the Parties serving as the Meeting of the Parties to the Kyoto Protocol, Copenhagen, 7–18
December 2009, FCCC/KP/CMP/2009/6, (12 June 2009).
UNFCCC, Proposal from Algeria, Benin, Brazil, Burkina Faso, Cameroon, Cape Verde,
China, Congo, Democratic Republic of the Congo, El Salvador, Gambia, Ghana, India,
Indonesia, Kenya, Liberia, Malawi, Malaysia, Mali, Mauritius, Mongolia, Morocco,
Mozambique, Nigeria, Pakistan, Rwanda, Senegal, Seychelles, Sierra Leone, South Africa, Sri
Lanka, Swaziland, Togo, Uganda, United Republic of Tanzania, Zambia and Zimbabwe for an
amendment to the Kyoto Protocol, Conference of the Parties serving as the Meeting of the
100
Parties to the Kyoto Protocol, Copenhagen, 7-18 December 2009, FCCC/KP/CMP/2009/7, (15
June 2009).
UNFCCC, Additional views on which the Chair may draw in preparing text to facilitate
negotiations among Parties, Submissions from Parties, Ad Hoc Working Group on Long-term
Cooperative Action under the Convention, FCCC/AWGLCA/2010/MISC.2, (30 April 2010).
UNFCCC, Views on an indicative roadmap, Submissions from Parties, Ad Hoc Working
Group
on
Long-term
Cooperative
Action
under
the
Convention,
FCCC/AWGLCA/2010/MISC.3, (17 May 2010).
UNFCCC, Additional views on which the Chair may draw in preparing text to facilitate
negotiations among Parties, Submissions from Parties, Ad Hoc Working Group on Long-term
Cooperative Action under the Convention, FCCC/AWGLCA/2010/MISC.2/Add.1, (17 May
2010).
UNFCCC, Proposed protocol to the Convention submitted by Grenada for adoption at the
sixteenth session of the Conference of the Parties, FCCC/CP/2010/3, (2 June 2010).
UNFCCC, Preparation of an outcome to be presented to the Conference of the Parties for
adoption at its sixteenth session to enable the full, effective and sustained implementation of
the Convention through long-term cooperative action now, up to and beyond 2012,
FCCC/AWGLCA/2010/MISC.8/Add.2, (10 December 2010).
B.4 Other UNFCCC documents
UNFCCC, Organizational matters, Adoption of the Rules of Procedure, Note by the
secretariat, FCCC/CP/1996/2, (22 May 1996).
UNFCCC, Other Action taken by the Conference of the Parties, Annex: The Geneva
Ministerial Declaration, in Report of the Conference of the Parties on its second session, held
at Geneva from 8 to 19 July 1996, Addendum Part Two: Action Taken by the Conference of
the Parties, FCCC/CP/1996/15/Add.1, (29 October 1996).
UNFCCC, Tracing the Origins of the Kyoto Protocol: An Article-by Article History, Technical
Paper, Joanna Depledge, FCCC/TP/2000/2, (25 November 2000).
UNFCCC
(ed.),
“The
First
Ten
Years”,
http://unfccc.int/resource/docs/publications/first_ten_years_en.pdf.
Bonn,
2004,
UNFCCC (ed.), United Nations Framework Convention on Climate Change Handbook, Bonn,
2006, http://iklim.cob.gov.tr/iklim/Files/eKutuphane/8-UNFCCC-elkitabi.ingilizce.pdf.
UNFCCC, Article 3, paragraph 9 of the Kyoto Protocol: Consideration of Commitments for
Subsequent Periods For Parties Included in Annex I to the Convention, in Report of the
Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its first
session, held at Montreal from 28 November to 10 December 2005, Part One: Proceedings,
FCCC/KP/CMP/2005/8, (30 March 2006).
UNFCCC, Organizational Matters, in Report of the Conference of the Parties serving as the
meeting of the Parties to the Kyoto Protocol on its second session, held at Nairobi from 6 to 17
November 2006, Annual report of the Compliance Committee to the Conference of the Parties
serving as the meeting of the Parties to the Kyoto Protocol, FCCC/KP/CMP/2006/6, (22
September 2006).
101
UNFCCC, Report on the dialogue on long-term cooperative action to address climate change
by enhancing implementation of the Convention, FCCC/CP/2007/4, (19 October 2007).
UNFCCC, Review of work programme, methods of work and schedule of further sessions, in
Report of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the
Kyoto Protocol on its resumed fourth session, held in Bali from 3 to 15 December 2007,
FCCC/KP/AWG/2007/5, (5 February 2008).
UNFCCC, Report of the Ad Hoc Working Group on Further Commitments for Annex I Parties
under the Kyoto Protocol on its resumed fourth session, held in Bali from 3 to 15 December
2007, FCCC/KP/AWG/2007/5, (5 February 2008).
UNFCCC, Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative
Action under the Convention, Draft Conclusions proposed by the Chair,
FCCC/AWGLCA/2009/L.7/Rev.1, (16 December 2009).
UNFCCC, Executive Secretary, Bonn, Notification to Parties: Communication of information
relating to the Copenhagen Accord, (18 January 2010).
UNFCCC, Executive Secretary, Bonn, Notification to Parties: Clarification to the Notification
of 18 January 2010, (25 January 2010).
UNFCCC, Consideration of further commitments for Annex I Parties under the Kyoto
Protocol, Draft conclusions proposed by the Chair, Ad Hoc Working Group on Further
Commitments for Annex I Parties under the Kyoto Protocol on its Twelfth session at Bonn, 1–
11 June 2010, FCCC/KP/AWG/2010/L.4, (10 June 2010).
UNFCCC, Issues relating to the transformation of pledges for emission reductions into
quantified emission limitation and reduction objectives: methodology and examples,
FCCC/TP/2010/3, (20 July 2010).
UNFCCC, Legal considerations relating to a possible gap between the first and subsequent
commitment periods, Ad Hoc Working Group on Further Commitments for Annex I Parties
under the Kyoto Protocol, thirteenth session, Bonn, 2-6 August 2010,
FCCC/KP/AWG/2010/10, (20 July 2010).
UNFCCC, Report on Experience with the Verification Procedure under the Joint
Implementation Supervisory Committee and possible Improvements in the Future Operation of
Joint Implementation, in Annual report of the Joint Implementation Supervisory Committee to
the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol,
FCCC/KP/CMP/2010/9, (16 November 2010).
UNUNFCCC (ed.), Kyoto Protocol Reference Manual on Accounting of Emissions and
Assigned Amount, http://unfccc.int/resource/docs/publications/08_unfccc_kp_ref_manual.pdf.
C. OTHER SOURCES OF INTERNATIONAL LAW
C.1 Case law of the ICJ
ICJ, Nuclear Test Case (New Zealand & Austria v. France), Judgment of 20 December 1974,
ICJ Reports 1974.
102
ICJ, Frontier Dispute Case (Burkina Faso v. Mali), Judgment of 22 December 1986, ICJ
Reports 1986.
C.2 United Nations Documents
WMO/UNEP INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Report of the Second
Session of the WMO/UNEP Intergovernmental Panel on Climate Change, Nairobi, World
Climate Programme Publication Series, 1989.
UNITED NATIONS INSTITUTE FOR TRAINING AND RESEARCH (ed.), “Multilateral Conferences
and Diplomacy- A Glossary of Terms for UN Delegates”, Geneva, 2005,
http://www.unitar.org/mdp/sites/unitar.org.mdp/files/Glossary_E.pdf.
Security Council, SC/9000, Security Council holds first- ever debate on impact of climate
change on peace, security, hearing over 50 speakers, 17 April 2007, Department of Public
Information, http://www.un.org/News/Press/docs/2007/sc9000.doc.htm.
UNEP (ed.), “The Emissions Gap Report- Are the Copenhagen Accord Pledges Sufficient to
Limit
Global
Warming
to
2°C
or
1.5°C?”,
November
2010,
http://www.unep.org/publications/ebooks/emissionsgapreport/pdfs/The_EMISSIONS_GAP_R
EPORT.pdf.
C.3 IPCC Documents
IPCC, First Assessment Report, Cambridge, Cambridge University Press,1990.
IPCC (ed.), “Summary for Policymakers” in IPCC, Climate Change 2007: Synthesis Report,
http://www.ipcc.ch/publications_and_data/ar4/syr/en/spm.html.
IPCC (ed.), “Summary for Policymakers” in IPCC, Climate Change 2007: The Physical
Science Basis, Contribution of Working Group I to the Fourth Assessment Report of the
Intergovernmental Panel on Climate Change, http://www.ipcc.ch/pdf/assessmentreport/ar4/wg1/ar4-wg1-spm.pdf.
Intergovernmental Panel on Climate Change, Principles governing IPCC work, Vienna, 1998,
http://www.ipcc.ch/pdf/ipcc-principles/ipcc-principles.pdf.
D. WRITINGS OF LEARNED AUTHORS
D.1 Monographs
ALDY, J. E., ASHTON, J., and BARON, R., Beyond Kyoto: Advancing the international effort
against climate change, Arlington, Pew Center on Global Climate Change, 2003, 170 p.
ALDY, J. E. and STAVINS, R. N., Architectures for agreement: addressing global climate
change in the post-Kyoto world, Cambridge, Cambridge University Press, 2007, 380 p.
ALDY, J. E. and STAVINS, R. N. , Post-Kyoto international climate policy: implementing
architectures for agreement, Cambridge, Cambridge University Press, 2010, 983 p.
103
ANDRESEN, S., WALLOE, L. and ROSENDAL, K., “The Precautionary Principle: Knowledge
Counts but Power Decides?” in COONEY, R. and DICKSON, B. (eds.), Biodiversity and the
Precautionary Principle- Risk and Uncertainty in Conservation and Sustainable Use, London,
Earthscan, 2005, 39-54.
BARNETT, J. and CAMPBELL, J., Climate Change and Small Island States- Power, Knowledge
and the South Pacific, London, Earthscan, 2010, 218 p.
BIERMANN, F., PATTBERG, P. and ZELLI, F., Global Climate Governance Beyond 2012Architecture, Agency and Adaptation, Cambridge, Cambridge University Press, 2010, 328 p.
BIRNIE, P. W., BOYLE, A. E. and REDGWELL, C., International law and the environment,
Oxford, Oxford University Press, 2009, 851 p.
BLOOM, A., J., Global Climate Change- Convergence of Disciplines, Sunderland, Sinauer
Associates Inc., 2010, 398 p.
BODANSKY, D., “Deconstructing the Precautionary Principle” in CARON, D. D. and SCHEIBER,
H.N. (eds.), Bringing New Law to Ocean Waters, Leiden, Martinus Nijfhoff Publishers, 2004,
381-391.
BODANSKY, D., The Art and Craft of International Environmental Law, London, Harvard
University Press, 2010, 359 p.
BODANSKY, D., “Climate Commitments: Assessing the Options” in ALDY, J. E., ASHTON, J.,
and BARON, R., Beyond Kyoto: Advancing the international effort against climate change,
Arlington, Pew Center on Global Climate Change, 2003, 37-59.
BRUNNÉE, J. “Climate change, global environmental justice and international environmental
law” in EBBESSON, J., OKOWA, P. (eds.), Environmental law and justice in context, Cambridge,
Cambridge University Press, 2008, 316-332.
BYRNE, J., GLOVER, L., and MARTINEZ, C., Environmental Justice- Discourses in International
Political Economy- Energy and Environmental Policy, New Jersey, Transaction Publishers,
2002, 303 p.
CAMPBELL, K. (ed.), Climatic Cataclysm- The Foreign Policy and National Securtiy
Implications of Climate Change, Washington, The Brookings Institution, 2008, 237 p.
CARLARNE, C. P., Climate Change Law and Policy: EU and US Approaches, Oxford, Oxford
University Press, 2010, 384 p.
CHURCHILL, R. and FREESTONE, D. (eds.), International Law and Global Climate Change,
London, Graham & Trotman Limited, 1991, 447 p.
COONEY, R. and DICKSON, B. (eds.), Biodiversity and the Precautionary Principle- Risk and
Uncertainty in Conservation and Sustainable Use, London, Earthscan, 2005, 314 p.
DE CENDRA DE LARRAGAN, J., “EU Climate Change Mitigation Law: is it Adequate, is it
Fair?” in DELVAUX, B., HUNT, M. and TALUS, K., EU Energy Law and Policy Issues,
Rixensart, Euroconfidentiel, 2008, 193-222.
DEPLEDGE, J., The Organization of Global Negotiations- Constructing the Climate Change
Regime, London, Earthscan, 2005, 258 p.
DESAI, B. H., Multilateral Environmental Agreements: Legal Status of the Secretariats,
Cambridge, Cambridge University Press, 2010, 313 p.
DESSLER, A. and PARSON E., The Science and Politics of Global Climate Change- A Guide to
the Debate, Cambridge, Cambridge University Press, 2006, 190 p.
104
DOUMA, W. T., MASSAI, L. and MONTINI, M. (eds.), The Kyoto protocol and beyond; legal
and policy challenges of climate change, Den Haag, Asser Press, 2007, 246 p.
DROST, P., Multilateral environmental agreements- MEA 2010, The Hague, Eleven
International Publishers, 2010, 648 p.
DRUMBL, M. A., “Actors and law-making in international environmental law” in M.
FITZMAURICE, D. M. ONG, and P. MERKOURIS (eds.), Research Handbook on International
Environmental Law, Cheltenham, Edward Elgar Publishing Limited, 2010, 3-25.
EBBESSON, J., OKOWA, P. (eds.), Environmental law and justice in context, Cambridge,
Cambridge University Press, 2008, 483p.
FITZMAURICE, M., ONG, D.M. and MERKOURIS, P., Research Handbook on International
Environmental Law, Cheltenham, Edward Elgar Publishing Limited, 703 p.
FREESTONE, D. and STRECK C. (eds.), Legal aspects of implementing the Kyoto Protocol
mechanisms: making Kyoto work, Oxford, Oxford University Press, 2005, 643 p.
GERRARD, M. B. and AVGERINOPOULOU, D., “Development and the future of climate change
law” in LEARY, D. and PISUPATI, B., (eds.), The future of international environmental law,
United Nations University Press, New York, 2010, 149-177.
GIDDENS, A., The politics of climate change, Cambridge, Polity Press, 2009, 264 p.
GRUBB, M., VROLIJK, C. and BRACK, D., The Kyoto Protocol- A Guide and Assessment,
London, Royal Institute of International Affairs, 1999, 342 p.
GUPTA, J. and GRUBB, M. (eds.), Climate change and European Leadership: A sustainable
role for Europe?, Dordrecht, Kluwer, 2000, 372 p.
GUPTA, J. and VAN DER GRIJP, N., Mainstreaming Climate Change in Development
Cooperation, Cambridge New York, Cambridge University Press, 2010, 347 p.
HARRIS, P. G. (ed.), Europe and global climate change: politics, foreign policy and regional
cooperation, Cheltenham, Edward Elgar Publishing Limited, 2007, 415 p.
HOVI, J., STOKKE, O. S. and ULFSTEIN, G., Implementing the Climate Regime: International
Enforcement, London, Earthscan, 2005, 240 p.
JORDAN, A. and RAYNER, T., “The evolution of climate policy in the European Union: an
historical overview” in JORDAN, A., HUITEMA, D., VAN ASSELT, H., RAYNER, T. and
BERKHOUT, F., Climate Change Policy in the European Union- Confronting the Dilemmas of
Mitigation and Adaptation?, Cambridge, Cambridge University Press, 2010, 52-80.
JORDAN, A., HUITEMA, D., VAN ASSELT, H., RAYNER, T. and BERKHOUT, F., Climate Change
Policy in the European Union- Confronting the Dilemmas of Mitigation and Adaptation?,
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