Faculteit Rechtsgeleerdheid Universiteit Gent...

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

II

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!

III

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!

IV

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.2.4! Current proposals to amend? .................................................................................... 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.3.4! Current proposals? .................................................................................................... 74!


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!



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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!

VI

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!

VII

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.

VIII

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

IX

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.

X

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.

XI

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.

1

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.

2

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. 7 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=power&npp=50&ipp=20&spp=20&profile=bib&ri=1&source=%7E%21horizon&index=.SW&term=climate+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.

3

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. 12Intergovernmental 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.

4

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 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, 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.

5

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.

6

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.

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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. 35J. 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 post-2012 problem.

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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. 43 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://eur-lex.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-Forum-on-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.

9

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.

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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.

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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.

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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). 66Montreal 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.

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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.

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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.

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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.

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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 UNFCCC82-

consensus 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 Bound- Anything New under the Sun?”, Nordic J. Int’l L. 2005, vol. 74, (483) (hereinafter: M. FITZMAURICE, Consent to Be Bound), 487.

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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 Diplomacy- A 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.

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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.

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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.

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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/members-and-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%20FINAL.pdf.

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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 Byrd-

Hagel 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/. 110 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.

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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.

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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.

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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.

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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.

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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.

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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. 140 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.

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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. 147 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.

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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 Kyoto-

units 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).

30

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.

31

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).

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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.

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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://www-iam.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.

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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%202010).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.

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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 post-

2012 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%20gas%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.

36

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.

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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-nation-fundamentally-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.

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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.

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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).

40

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 (AWG-

LCA) 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.

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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.

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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. 215 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. 217UNFCCC, 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).

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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. 221 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.

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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.

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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.

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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.

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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-climate-change.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/eu-looks-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).

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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 AWG-

LCA, 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 post-

2012 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. 246 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.

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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. 253 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.

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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 top-

down 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_app1.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.

51

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. 265 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-copenhagen-text-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-copenhagen-3c; 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-accord-significant-a-24845.html.

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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-it-means (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-copenhagen-idUSGEE5BB07F20091220.

53

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).

54

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.

55

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.

56

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. 300Cancun 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.

57

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. 303 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.

58

5. THE POST-2012 LEGAL REGIME

A. A LEGALLY BINDING REGIME?

Many countries expressed their preference for a legally-binding agreement (LBA) for the post-

2012 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 post-Copenhagen: 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.

59

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.

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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-or-Break-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.

61

Legal Form Content (legal form of the

commitment, clarity,

specificity, ambition)

Procedures and institutional

Framework (compliance,

enforcement, MRV)

Standards Binding Non-Binding High Low High Low

Benefits Greater

financial

support to

Parties and

institutions

Incorporation

in domestic

law

Media and

public

awareness

Confidence

of carbon

markets

Wider

participation

Higher

expressed

ambition

Greater

transparency,

predictability

and

accountability

Clear market

signals

Harmonization/

mutual

recognition of

domestic

legislation

Wider

participation

Wider

ratification

Greater

transparency,

predictability

and

accountability

Clearer market

signals

Higher rates of

domestic

implementation

Wider

participation

Wider

ratification

Risks Lower

common

denominator

commitments

Non-

participation

Non-

ratification

Lack of media

and public

awareness and

support

Inefficient/

inoperable

carbon-

markets

Retreat from

multilateralism

and rule of law

Lower

common

denominator

commitments

Non-

participation

Non-

ratification

Wide-spread

non-

compliance

Lack of

media and

public

awareness

and support

Non-

participation

Non-ratification

Withdrawal of

non-compliant

Parties

Wide-spread

non-

compliance

62

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 non-

binding 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. 324United 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.

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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 time-

considerations.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.

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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 KP- Background document”, 2009, on file with author, (1) 3. 336 See infra: 5.B.1.5, Will there be a gap?

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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. 338 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.

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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.

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“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. 345FCCC/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.

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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.

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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).


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 three-

fourths 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.


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 D. BODANSKY, Legal Form of a New Climate Agreement, supra note 210, 3. 357 L. RAJAMANI, “Addressing the “Post-Kyoto” Stress Disorder, supra note 223, 819.

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annexes to the Kyoto Protocol. The obvious difficulty of amending the UNFCCC is the lack of

political consensus to make such changes.


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 AWG-

LCA’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


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).

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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.

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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


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. 366 The mandate as included in the Bali Action Plan: Decision 1/CP.13. 367L. 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.

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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


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. 373 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.

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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.

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US submitted a proposal for an “implementing agreement”, without addressing the relationship

with the Kyoto Protocol.382


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.

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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.

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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 well-

known 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 two-

thirds 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.

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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.

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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.

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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.


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. 411 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.

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Parties.415 Furthermore, the only sanction following non-compliance would be the ‘naming and

shaming’.


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.


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.

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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.), “High-Level 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. 422A. 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.

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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. 425 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.

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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 well-

known 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?

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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. 436 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.

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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. 442 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/white-paper/V2Appendix_C-pdf.ashx.

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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).

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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.

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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.

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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.

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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. 466 Decision 27/CMP.1, supra note 159, Annex, 93. 467 Secretariat, Legal considerations relating to a possible gap, supra note 353, 13-14.

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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.

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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.

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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

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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.

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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

97

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,

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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 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). 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.

99

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).

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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

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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”, Bonn, 2004, http://unfccc.int/resource/docs/publications/first_ten_years_en.pdf. 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).

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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.

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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_REPORT.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/assessment-report/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.

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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 2012- Architecture, 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.

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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?, Cambridge, Cambridge University Press, 2010, 284 p. KEOHANE, R. O. and RAUSTIALA, K., “Towards a Post-Kyoto Climate Change Architecture: A Political Analysis” in ALDY, J. E. and STAVINS, R. N., Post-Kyoto international climate policy: implementing architectures for agreement, Cambridge, Cambridge University Press, 2010, 372-402. KEULARTZ, J., KRAUSE, F., PETTELLA, R. and VERMEERSCH, E. (eds.), Reading the Kyoto Protocol: ethical aspects of the Convention on Climate Change, Delft, Eburon, 2005, 164 p. KORPPOO, A., KARAS, J. and GRUBB, M. (eds.), Russia and the Kyoto Protocol: opportunities and challenges, London, Chatham House, 2006, 174 p.

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LEARY, D. and PISUPATI, B. (eds.), The future of international environmental law, United Nations University Press, New York, 2010, 335 p. LEFEBER, R., An Inconvenient Responsibility, Utrecht, Eleven International Publishing, 2009, 26 p. LOUKA, E., International Environmental Law- Fairness, Effectiveness, and World Order, Cambridge, Cambridge University Press, 2006, 518 p. MASSAI, L., The Kyoto Protocol in the EU, The Hague, T.M.C. Asser Press, 2011, 431 p. MCCAFFREY, P. (ed.), Global Climate Change, New York, Wilson, 2006, 192 p. MINTZER, I. M., Confronting Climate Change- Risks, Implications and Responses, Cambridge, Cambridge University Press, 1992, 382 p. MONTINI, M., “The Compliance Regime of the Kyoto Protocol” in 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, 95-109. NEWELL, P., “From global power politics to responsible collective governance” in TRANSPARENCY INTERNATIONAL (ed.), Global Corruption Report: Climate Change, London, Earthscan, 2011, 28-37. NIELSEN, L. (ed.), The Copenhagen protocol on climate change: an international negotiation competition, Copenhagen, DJOF Publishing, 2009, 344 p. PEETERS, M. and DEKETELAERE, K., EU Climate Change Policy: the challenge of new regulatroy initiatives, Cheltenham, Elgar, 2006, 334 p. RAJAMANI, L., Differential Treatment in International Environmental Law, Oxford, Oxford University Press, 2OO6, 281 p. REVESZ, R. L., SANDS, P. and STEWART, R.B., Environmental Law, the Economy and Sustainalbe Development, Cambridge, Cambridge University Press, 2000, 437 p. SCHREUDER, Y., The corporate greenhouse: Climate Change Policy in a Globalizing World, London, Zed Books, 2009, 256 p. SCHUBERT, R., SCHELLNHUBER, H.J., BUCHMANN, N., EPINEY, A., GRIEBHAMMER, R., KULESSA, M., MESSNER, D., RAHMSTORF, S. and SCHMID, J., Climate Change as a Security Risk, London, Earthscan, 2009, 248 p. STARKE, L. (ed.), State of the world 2009- Confronting Climate Change, London, Earthscan, 2009, 262 p. STAVINS, R. N. “An International Policy Architecture for the Post-Kyoto Era” in ZEDILLO, E. (ed.), Global warming: looking beyond Kyoto, Washington, D.C., Brookings Institution Press, 2008, 145-153. STERN, N., The Economics of Climate Change: The Stern Review, Cambridge, Cambridge University Press, 2007, 712 p. STOWELL, D., Climate Trading: development of greenhouse gas markets, Basingstoke, Palgrave, 2005, 246 p. TICKELL, O. , Kyoto 2- How to mange the global greenhouse, New York, Zed Books, 2008, 293 p.

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TRANSPARENCY INTERNATIONAL, Global Corruption Report: Climate Change, London, Earthscan, 2011, 360p. TREVES, T. (ed.), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements, The Hague, T.M.C. Asser Press, 2009, 634 p. TROUWBORST, A., Precautionary Rights and Duties of States, Leiden, Martinus Nijhoff Publishers, 2006, 351 p. TROUWBORST, A., Evolution and Status of the Precautionary Principle in International Law, The Hague, Kluwer Academic Publishers, 2002, 378 p. ULFSTEIN, G. and WERKSMAN, J., “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, 39-62. ULFSTEIN, G., “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, 24-67. UNITED NATIONS ENVIRONMENT PROGRAMME (ed.), UNEP Year Book 2008- An Overview of Our Changing Environment, Nairobi, UNEP, 2008, 50 p. URBINATI, S., “Procedures and Mechanisms Relating to Compliance under the 1997 Kyoto Protocol to the 1992 United Nations Framework Convention on Climate Change” in TREVES, T. (ed.), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements, The Hague, T.M.C. Asser Press, 2009, 63-84. VERHEYEN, R., Climate Change Damage and International Law- Prevention Duties and State Responsiblity , Leiden, Martinus Nijhoff Publishers, 2005, 406 p. VICTOR, D. G., The Collapse of the Kyoto Protocol- and the Struggle to Slow Global Warming, Princeton, Princeton University Press, 2001, 178 p. WELP, M. (ed.), Climate policy in the coming phases of the Kyoto process: targets, instruments, and the role of cap and trade schemes, Potsdam, Potsdam institute for climate impact research, 2007, 124 p. WERKSMAN, J., “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, 17-37. WURZEL, R., and CONNELY, J. (eds.), The European Union as a Leader in International Climate Change Politics, Routledge, Abingdon Oxon, 2011, 299 p. YAMIN, F., “The role of the EU in climate negotiations” in GUPTA, J. and GRUBB, M. (eds.), Climate change and European Leadership: A sustainable role for Europe?, Dordrecht, Kluwer, 2000, 47-66. YAMIN, F. and DEPLEDGE, J., The international climate change regime: a guide to rules, institutions and procedure, Cambridge, Cambridge University Press, 2005, 699 p. ZEDILLO, E. (ed.), Global warming: looking beyond Kyoto, Washington, D.C., Brookings Institution Press, 2008, 237 p. ZINNBAUER, D., “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

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ABATE, R. S., “Kyoto or Not, here we come: the Promise and Perils of the Piecemeal Approach of Climate Change Regulation in the United States”, JLPP 2006, vol. 2, 369-402. AFIONIS, S., “The European Union as a negotiator in the international climate change regime”, International Environmental Agreements: Politics, Law and Economics 2010, 1-20. AFIONIS, S. and CHATZOPOULOS, I., “Russia’s role in UNFCCC negotiations since the exit of the United States in 2001”, International Environmental Agreements: Politics, Law and Economics 2010, vol.1, 45-63. AGUILAR, S., “Elements for a Robust Climate Regime Post-2012: Options for Mitigation”, RECIEL 2007, vol. 16, 356-367. ALDY, J., BARRETT, S. and STAVINS, R. N., “Thirteen plus one: a comparison of global climate policy architectures”, Climate Policy 2003, vol. 3, 373-397. BAUSCH, C. and MEHLING, M., “Alive and Kicking: The First Meeting of the Parties to the Kyoto Protocol”, RECIEL 2006, 193-201. BAUSCH, C. and MEHLING, M., “Tracking Down the Future Climate Regime- An Assessment of Current Negotiations under the U.N.”, CCLR 2007, 4-16. BODANSKY, D., “The UN Framework Convention on Climate Change: A Commentary”, Yale J. Int’l L. 1993, vol. 18, 451-558. BODANSKY, D., “The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?”, AJIL 1999, vol. 93, 596- 624. BODANSKY, D., “Legal Form of a New Climate Agreement: Avenues and Options”, Pew Center on Global Climate Change 2009, 1-8. BODANSKY, D., “The Copenhagen Climate Change Conference: A Post-Mortem”, AJIL 2010, vol. 104, 1-11. BOSTON, J., “Framing a Post-2012 Climate Change Agreement: The Quest for ‘Comparability of Efforts’”, Policy Quarterly 2008, vol.4, 40-47. BRUNNÉE, J., “COPing with Consent: Law-Making under Multilateral Environmental Agreements”, LJIL 2002, vol. 15, 1-52. BRUNNÉE, J., “Europe, the United States and the Global Climate Regime: All Together Now”, J. Land Use & Envtl L. 2008, vol.1, 1-44. BRUNNÉE, J., “From Bali to Copenhagen: Towards a Shared Vision for a Post-2012 Climate Regime?”, MJIL 2010, vol.25, 86-108. BRUNNÉE, J., “The United States and International Environmental Law: Living with an Elephant”, EJIL 2004, vol. 15, 617- 649. BURLESON, E., “Climate Change Consensus: Emerging International Law”, ELPR 2010, vol. 2, 543-588. BURLESON, E., “Multilateral Climate Change Mitigation”, University of San Fransisco Law Review 2007, vol. 41, 1-34. BUSHEY, D. and JINNAH, S., “Evolving Responsibility? The Principle of Common but Differentiated Responsibility in the UNFCCC”, BJIL 2010, vol. 6, 1-10.

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UNFCCC, “Party Groupings”, http://unfccc.int/parties_and_observers/parties/negotiating_groups/items/2714.php (consultation 28 June 2011). UNFCCC, “Status of Ratification of the Kyoto Protocol”, http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php (consultation 28 June 2011). 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 (consultation 28 June 2011). US CLIMATE ACTION NETWORK (ed.), “Who’s on Board the Copenhagen Accord”, http://www.usclimatenetwork.org/policy/copenhagen-accord-commitments (consultation 28 June 2011). WATTS, J., “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-copenhagen-text-was-changed (consultation 28 June 2011). WERKSMAN, J. and HERBERTSON, K., “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 (consultation 28 June 2011). WERKSMAN, J., ““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-it-means (consultation 28 June 2011). WERKSMAN, J., “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-or-Break-a-Global-Deal-on-Climate (consultation 28 June 2011). 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 (consultation 28 June 2011). WWF (ed.), “High-Level Advisory Group on Climate Change Financing: WWF Recommendations”, Recommendation Paper 2010, http://www.worldwildlife.org/climate/Publications/WWFBinaryitem20101.pdf (consultation 28 June 2011).

E. MISCELLANEOUS

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://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52007DC0002:EN:NOT.

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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 post-Copenhagen: Acting now to Reinvigorate Global Action on Climate Change, COM(2010)86 final, http://ec.europa.eu/environment/climat/pdf/com_2010_86.pdf. G8 Chair’s Summary, L’Aquila Summit 2009, http://www.g8.utoronto.ca/summit/2009laquila/2009-summary.html. 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-Forum-on-Energy-and-Climate. 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. INTERNATIONAL LAW COMMISSION (ed.), “Draft Articles on the Law of Treaties with Commentaries”, Yearbook of the International Law Commission 1966, vol. II. 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. 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. 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, 1-9. Legal Expert Group EU (LEX), “Provisional application of treaties”, Background Paper 2010, on file with author, 1-6. Legal Expert Group EU (LEX), “Post 2012 Climate Legal Framework” Summary Paper 2008, on file with author, 1-4. Legal Expert Group EU (LEX), “Legal implications arising from the work of the AWG KP- Background document”, 2009, on file with author, 1-32. 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, 1-10. Legal Expert Group EU (LEX), “LEX Gap Paper”, on file with author, 1-8. Cartagena Dialogue Discussion Paper, “Legal Options and Regime Scenarios”, on file with author, 1-6.

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