Climate, International Protection
Philippe J Sands, Ilona Millar
- Climate change — Sustainable development — Regional co-operation — Developing countries
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1 The earth’s climate is determined in large part by the presence in the atmosphere of naturally occurring greenhouse gases, including in particular water vapour, carbon dioxide (CO2), methane (CH4), chlorofluorocarbons (CFCs), nitrous oxide (N2O), and tropospheric ozone (O3) (Atmosphere, International Protection). These gases are transparent to incoming shortwave solar radiation but absorb and trap longwave radiation emitted by the earth’s surface. Their presence exerts a warming influence on the earth. This natural greenhouse effect is positive in keeping the earth warm and habitable. Scientific evidence, however, suggests that continued increase in atmospheric concentrations of selected greenhouse gases due to anthropogenic (human-caused) activities is contributing to an ‘enhanced greenhouse effect’. Under this scenario, more of the sun’s heat is trapped, causing global climatic change that poses great risks to man’s economy and environment.
2 The international response to climate change is complex, intense, and delicate. There is a general recognition of the urgency of the problem and the need for immediate action. In 1988, the United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO) established the Intergovernmental Panel on Climate Change (IPCC) to provide scientific guidance on the threat of climate change. The stage had been set for the establishment of the IPCC and ensuing developments by the deliberations of the Villach Conference of Experts in Villach, Austria. The IPCC published its First Assessment Report in August 1990, which predicted that global mean temperatures could rise by an average of about 0.3°C per decade (with an uncertainty range of 0.2–0.5°C) during the next century. Such a rate of increase would be likely to increase global average rainfall by a few per cent by 2030, decrease the areas of sea ice and snow cover, and raise the global mean sea level by 20 cm by 2030 and 65 cm by the end of the 21st century. These predictions assumed a ‘business as usual’ scenario with continued reliance on coal and oil, modest improvements in energy efficiency, limited controls on emissions of CO2, continued deforestation, uncontrolled emissions of CH4 and N2O from agricultural sources, and a reduction of CFCs in line with the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 16 September 1987, entered into force 1 January 1989; Ozone Layer, International Protection). Subsequent IPCC Reports published in 1995, 2001, and 2007 have confirmed and elaborated upon these findings. The fourth and most recent IPCC Report ‘Climate Change 2007: Impacts, Adaptation and Vulnerability’, published in 2007 (in three parts, as in earlier IPCC Reports), concludes that ‘[w]arming 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’.
3 The approach of the international community to climate change, along with the problem of ozone depletion, reflects the approach of the global regulatory system on environmental protection. The United Nations Framework Convention on Climate Change (UNFCCC; adopted 9 May 1992, entered into force 21 March 1994) acts as a consensus-building exercise that lays the groundwork for succeeding agreements. Concrete obligations are agreed in subsequent conferences and expressed through the adoption of an amendment, an addendum, or a protocol.
4 As developed and developing countries now look to agree upon further climate change commitments for the period beyond 2012, the international response remains a challenge due to several factors, foremost of which are perceptions of uncertainty and impacts on economic development.
B. Climate Change Convention of 1992
1. Historical Development
5 The negotiation of a climate change treaty was initiated by the UN General Assembly and the specialized agencies (United Nations, Specialized Agencies). In 1988, the UN General Assembly took up the issue of climate change for the first time and adopted Resolution 43/53 ‘Protection of Global Climate for Present and Future Generations of Mankind’ which, along with Resolution 44/207 adopted the subsequent year, urged governments and intergovernmental and non-governmental organizations to collaborate in a concerted effort to prepare, as a matter of urgency, a framework convention on climate change (see also Environment, Role of Non-Governmental Organizations). The Ministerial Declaration of the Second World Climate Conference (adopted 7 November 1990) gave further impetus to the political process by calling for immediate negotiations on an effective framework convention on climate change containing appropriate commitments. In December 1990, the UN General Assembly established a single intergovernmental negotiating process for the preparation by an Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (INC/FCCC). The INC/FCCC held five sessions and the UNFCCC was adopted at the close of the resumed fifth session in May 1992.
6 The UNFCCC was opened for signature in June 1992 at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, Brazil, where it was signed by 155 States and the European Union (EU). This proved an important impetus for the completion of the UNCED negotiations. The UNFCCC entered into force on 21 March 1994. Having been ratified or acceded to by 193 States and the EU as of January 2011, the UNFCCC is considered to have near universal membership.
2. Objectives and Principles
7 The ultimate objective of the UNFCCC is to stabilize greenhouse gas concentrations in the atmosphere at a level that prevents dangerous anthropogenic interference with the climate system. Implicitly recognizing that some climate change is inevitable, the convention seeks to achieve this objective within a time frame sufficient to allow ecosystems to adapt naturally, to ensure food production continues, and to enable economic development to proceed with sustainability. The UNFCCC recognizes different national, economic, social, and environmental interests. Parties are obliged to protect the climate system on the basis of equity (Equity in International Law) and in accordance with differentiated responsibilities and respective capabilities, with developed countries taking the lead. The need to ensure sustainable development in order to address climate change is also recognized. Climate change policies should also be integrated with national development programmes and must not be used as a means for unjustified discrimination or restriction of international trade (Trade and Environment).
8 Six gases are covered by the emission reduction commitments in the UNFCCC: CO2, CH4, N2O, hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride. The number of gases covered by the Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 10 December 1997, entered into force 16 February 2005) was a controversial issue, with strong disagreement during the negotiations as to whether any gases beyond CO2, CH4, and N2O would be covered. In the end, all six gases were also listed in Kyoto Protocol Annex A, but the base year of 1995 may be used for the other gases.
3. General and Specific Commitments
9 To achieve the objectives of the UNFCCC, all parties are committed to take certain measures, taking into account their common but differentiated responsibilities and their development priorities, objectives, and circumstances. These general commitments require parties to develop national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol. Moreover, parties are required to formulate and implement national and regional programmes containing measures to mitigate climate change and to facilitate adequate adaptation to climate change. Responsibilities include: promoting the diffusion of technologies and processes that control anthropogenic emissions; sustainable management and enhancement of sinks and reservoirs of greenhouse gases; cooperating in preparing for adaptation to the impacts of climate change; accounting for climate change in social, economic, and environmental policies; and working together in education, training, public awareness, research, systematic observation, and development of data archives related to the climate change system, including the full exchange of relevant information.
10 All parties are also required to communicate to the Conference of the Parties: information on implementation; a national inventory of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol; a general description of steps taken or envisaged to implement the UNFCCC; and any other relevant information.
11 The core of the UNFCCC is found in Art. 4 (2), which refers to the specific commitments on the release of greenhouse gases from sources and removals of greenhouse gases by sinks of greenhouse gases by parties listed in Annex I (primarily developed countries). Under Art. 4 (2) (a), each Annex I party is required to adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs. Para. (b) requires them to communicate detailed information on policies and measures taken within six months after the entry into force of the UNFCCC and periodically thereafter, in order to return to earlier levels of anthropogenic emissions. In an earlier draft of the UNFCCC the target and timetable were joined together; however, these were separated in the final draft in order to facilitate the achievement of consensus.
12 The extent of commitments under the UNFCCC is unclear, due to the convoluted language agreed to as a compromise between the negotiators (from both developed and developing countries). Although expressed as an aim for developed countries, there was no commitment to stabilize greenhouse gas emissions at 1990 levels by the year 2000, as advocated by the EU and other countries, and developed country parties were only required to ‘limit’ their anthropogenic greenhouse gas emissions, as opposed to achieving quantified reductions. There is no obligation to achieve specific reductions by a given date. Further, Annex I parties are given varying responsibilities, as their contribution depends on a series of factors including starting points, economic structures, research bases, technology, and equity.
13 The differing economic capacities of developed countries, and in particular the problems faced by the former socialist countries of central and eastern Europe, led to a distinction with regard to finance. Annex I parties also included in Annex II agreed to provide new and additional financial resources to meet the ‘agreed full costs’ incurred by developing country parties to fulfil their commitment to communicate information on implementation, and to meet the agreed full incremental costs of implementing measures relating to their general commitments (subject to agreement with the entity providing finance). Annex II parties also committed themselves to undertake to assist developing country parties that are particularly vulnerable to the adverse effects of climate change in meeting the costs of adaptation. In effect, developed country parties implicitly accepted the primary responsibility for anthropogenic climate change.
14 The other commitments of Annex II parties include promoting, facilitating, and financing the access to environmentally sound technologies, and supporting the development of endogenous capacities and technologies of developing country parties.
4. Institutional Setting
15 The UNFCCC establishes a Conference of the Parties (COP), a secretariat, two subsidiary bodies, and a financial mechanism. The COP is the supreme body, entrusted with reviewing the implementation of the UNFCCC and making decisions to promote its effective implementation. Specifically, the COP’s functions include: examining periodically the obligations of the parties and the institutional arrangements under the UNFCCC; coordinating and assessing measures adopted by the parties; guiding methodologies for preparing inventories of greenhouse gas emissions; and adopting regular reports on the implementation of the UNFCCC.
16 Two subsidiary bodies were established to provide scientific and technological advice to the COP and review and assess the implementation of the UNFCCC.
17 The UNFCCC also defines a mechanism for the provision of financial resources on a grant or concessional basis, including for technology transfer. After the provision on specific commitments, this was the most disputed aspect of the UNFCCC. The financial mechanism functions under the guidance of the COP, which is responsible for its policies, programme priorities, and eligibility criteria. Its operation is entrusted to one or more existing international entities, and is to be based on equitable and balanced representation of all parties, with a transparent system of governance.
18 The UNFCCC allows for the establishment of a multilateral consultative process for the resolution of implementation questions, available to parties on their request. Additionally, a dispute settlement mechanism provides for possible compulsory recourse to arbitration, the International Court of Justice (ICJ), or a conciliation commission with the power to render a recommendatory award. The UNFCCC also provides for amendment of its terms, and the adoption and amendment of annexes and protocols.
5. Implementation and Further Development
19 The commitments under the UNFCCC are limited. The most that can reasonably be said of the provisions is that they establish soft targets and timetables with many loopholes, and create an institutional framework for actions to be taken in the future. Arts 4 (2) (a) and (b) were declared to be inadequate by the first COP in Berlin in 1995. The COP agreed to begin a process to take appropriate action for the post-2000 period, including the strengthening of commitments of Annex I parties through the adoption of a protocol or other legal instrument.
20 At the first session in Berlin, the COP also launched a pilot phase of activities implemented jointly (Joint Implementation). Under this pilot phase, parties were able to implement projects that reduce greenhouse gas emissions or enhance removals of greenhouse gases by sinks in the territories of other parties, although no carbon credits accrued for emission reductions or removals.
21 Under Arts 4 and 12, all parties are required to report on steps which have been taken to implement the UNFCCC, though certain provisions contained within these articles may or may not apply to all parties to the Convention (for example, Arts 4 (2) and 12 (2) impose reporting requirements applicable only to developed countries and Annex 1 parties). As of May 2010, most Annex 1 parties had reported under the UNFCCC at least three times, and most developing country parties at least once.
22 The Global Environment Facility (GEF) of the United Nations Development Programme (UNDP), the United Nations Environment Programme (UNEP), and the International Bank for Reconstruction and Development (IBRD) was entrusted with the operation of the financial mechanism on an interim basis. At its second conference in 1996, the COP adopted a memorandum of understanding with the Council of the GEF on their respective roles and responsibilities (Conference of the Parties of the Framework Convention on Climate Change ‘Report of the Conference of the Parties on its Second Session: Decision 12/CP.2 Memorandum of Understanding between the Conference of the Parties and the Council of the Global Environment Facility’ [8–19 July 1996] UN Doc FCCC/CP/1996/15/Add.1, Annex). At its fourth conference in 1998, the COP entrusted the GEF with the operation of the financial mechanism on a long-term basis, subject to review every four years. The GEF also operates, under the guidance of the COP serving as the Meeting of the Parties to the Kyoto Protocol (COP/MOP), the Special Climate Change Fund, the Least Developed Country Fund, and the Adaptation Fund established under the Kyoto Protocol.
23 The mandate agreed in Berlin led to the adoption of a protocol to the UNFCCC at its third COP in Kyoto in 1997. Significantly, the Kyoto Protocol set legally binding, quantified emission reduction targets for Annex B parties, and prescribed a timetable for these reductions.
C. Kyoto Protocol
24 The Kyoto Protocol to the UNFCCC was adopted by the third COP in December 1997. Negotiations for a Protocol to the UNFCCC commenced in 1995 after the first COP in Berlin determined that the commitments under Art. 4(2) (a) and (b) UNFCCC were not adequate. At the second COP in Geneva in 1996, the Geneva Ministerial Declaration was adopted to quantify legally binding objectives for emission limitations and significant overall reduction within specified time frames with respect to anthropogenic emissions by sources and removals by sinks of greenhouse gases not controlled by the Montreal Protocol.
2. Ambit and Content
25 The major achievement of the Kyoto Protocol is the commitment of Annex I parties to quantified emission reduction targets and a timetable for their achievement. This is the key distinction in the treatment of Annex I and Annex II parties. A further distinction is that all Annex II members are also Annex I members, but not all Annex I parties are also listed in Annex II.
26 Art. 3 (1) sets the basic obligation of Annex I parties to ensure that their aggregate anthropogenic CO2 equivalent emissions of greenhouse gases listed in Annex A do not exceed their assigned amounts. The assigned amounts are based on each party’s quantified emissions limitation and reduction commitment set out in Annex B. The objective is to reduce their overall emissions of Annex A gases by at least 5 per cent below 1990 levels in the first commitment period commencing in 2008 and continuing until 2012. At the time, this was estimated to represent the actual reduction of about 30 per cent of ‘business as usual’ emissions levels. For the first commitment period, Annex I parties with economies in transition can use a base year other than 1990.
27 Commitments for subsequent periods will be established by amendments to Annex B. Parties agree to initiate consideration of commitments for subsequent periods at least seven years before the end of the first commitment period. Those discussions commenced in 2005 with the establishment of the Ad Hoc Working Group on Further Commitments for Annex I Parties, which is now known as the AWG-KP. The work of the AWG-KP was scheduled to report to the fifth COP/MOP in Copenhagen in December 2009 (UN Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol ‘Report of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol on its tenth session, held in Copenhagen from 7 to 15 December 2009’ [28 January 2010] UN Doc FCCC/KP/AWG/2009/17). Whilst some progress was made during 2010, for example with a decision adopted at the sixth COP/MOP in Cancun in December 2010 on the base year to be applied for a second commitment period, parties remain unable to reach agreement on the key issues under consideration (eg commitments for Annex B parties in the second commitment period). Accordingly, the mandate of the AWG-KP has been extended and it will now report to the seventh COP/MOP in Durban, South Africa in December 2011.
28 Banking of assigned amounts for future commitment periods is permitted, as the difference between emissions in a commitment period and their assigned amounts could be added to assigned amounts for subsequent commitment periods.
29 The determination of emissions targets for the Annex I parties was a contentious and difficult issue. After intense negotiations, the parties agreed on differentiated targets, which were then reflected in Annex B. Thus, for example, the EU and its Member States agreed to an emissions limitation of 92 per cent of the 1990 base year, or an 8 per cent reduction in the first commitment period. The US agreed to a 7 per cent reduction, while Japan and Canada each accepted a 6 per cent reduction. Australia and Iceland were permitted to make increases respectively of 8 per cent and 10 per cent. Russia, the largest emitter of the Eastern bloc countries, agreed to stabilize its emissions at 100 per cent of 1990 levels.
30 The Protocol calls for the advancement of the implementation of commitments by all parties, including developing countries. A number of measures are listed that include formulating national and regional programmes to improve the quality of local emission factors and activity data for preparing national inventories of greenhouse gas emissions, and to mitigate climate change and facilitate adequate adaption to climate change.
31 By far the most innovative aspect of the Kyoto Protocol negotiations was the proposal to enable Annex I parties to meet their commitments under the Protocol by purchasing or acquiring credits representing greenhouse reductions in other countries. These ‘flexibility mechanisms’ are listed as follows: emissions trading, joint implementation, and the Clean Development Mechanism (CDM).
32 Under Art. 17 Kyoto Protocol, Annex B parties are allowed to engage in emissions trading or the purchase of emission reduction credits, in the form of assigned amounts units (AAUs), from another Annex B party where it would be more cost-effective for it to do so rather than to undertake the reduction domestically. However, such trading must be supplemental to domestic actions taken to achieve emission reductions. Art. 6 allows Annex I parties to transfer to, or acquire from, any other party emission reduction units (ERUs). Any joint implementation project must result in a reduction in emissions by sources, or an enhancement of removals by sinks, that is additional to any that would otherwise occur and should be supplemental to domestic actions. The CDM defined by Art. 12 establishes a means for Annex I parties to gain emission reductions credits to assist them in achieving compliance with their quantified emissions limitation and reduction commitments. Under this scheme, Annex I parties can invest in emission reduction projects in non-Annex I parties and obtain certified emission reductions (CERs).
33 Activities resulting in carbon sequestration count towards the quantified commitments of Annex I parties. The Protocol allows for commitments to be met by net changes in greenhouse gas emissions resulting from direct human-induced land-use, land-use change, and forestry activities (LULUCF) but limited to afforestation and reforestation (since 1990), and deforestation (Forests, International Protection). The COP/MOP was mandated to decide upon the modalities and guidelines on which additional human-induced activities (in the agricultural soils and land-use change and forestry categories) could be added to or subtracted from the assigned amounts for Annex I parties.
34 Detailed reporting obligations for Annex I parties are established to build upon the procedures under the UNFCCC. Annex I parties shall submit to the COP an annual inventory of anthropogenic emissions by sources and removal of sinks with necessary supplementary information demonstrating compliance under the Kyoto Protocol.
35 The Protocol further contemplates a mechanism for ensuring compliance with commitments. Thus, the COP/MOP at its first and subsequent sessions has developed procedures to address cases of non-compliance, including an indicative list of consequences. Procedures that entail binding consequences require a further amendment to the Protocol.
36 The Protocol requires ratification, acceptance, approval, or accession of at least 55 parties to the UNFCCC, which accounts for at least 55 per cent of the total CO2 of Annex I parties in 1990. The refusal of the United States, the world’s largest greenhouse gas emitter, to ratify the Protocol almost prevented entry into force, which only occurred following ratification by other Annex I parties with significant emissions, namely Japan, all members of the EU, and, most significantly, Russia. The Protocol came into force on 16 February 2005. As of 14 January 2011, 192 countries and the EU have deposited instruments of ratification, accession, or acceptance.
3. Implementation and Further Development: the Marrakesh Accords
37 Following the adoption of the Kyoto Protocol, negotiations continued on the subsidiary rules, guidelines, and methodologies called for by the Protocol text. Remaining issues under the UNFCCC were related to the implementation of commitments, particularly those relating to financing, capacity-building, adaptation, and technology transfer. Other matters corresponding to the Protocol involved carbon sinks, rules for emissions trading, and penalties for non-compliance with commitments. The ‘Marrakesh Accords’ agreed at the seventh COP in November 2001 addressed these issues.
38 The 218-page Marrakesh Accords were built on the agreements at a resumed session of the sixth COP in Bonn in July 2001. A major component of the Accords relates to the rules to implement Kyoto’s flexibility mechanisms, the establishment of a compliance procedure, and the elaboration of permissible LULUCF activities. Other provisions deal with guidelines on national systems for estimating anthropogenic sources of greenhouse gas emissions, preparing information required for reporting obligations under the Kyoto Protocol, and performance of reviews by expert teams. The Accords also consolidated matters under the UNFCCC relating to funding arrangements and capacity-building provisions for developing countries.
39 The emission reduction credits (AAUs, ERUs, and CERs) gained through the flexibility mechanisms, as well as removal units generated by sink activities, may be used to meet the emission reduction commitments of Annex I parties under Art. 3 (1) Kyoto Protocol. Trading of credits may be possible between national registries under the responsibility of the parties. Each national registry shall maintain electronic accounts of the transfers and acquisitions of units, including accounts for holding of any legal entity authorized by the party to engage in the trading of credits.
40 A supervisory committee was established to verify the ERUs from joint implementation activities between Annex I parties. Two tracks were defined for the management of these projects. Where a host party meets the eligibility requirements, it may itself certify ERUs generated by activities within its territory as being additional to reductions that would otherwise be made. If the host party does not meet the eligibility requirements, the resulting ERUs have to be verified by the supervisory committee. Projects starting from 2000 may qualify as joint implementation activities, but the resulting ERUs may only be issued for a crediting period starting after 2008.
41 In relation to the CDM, the Accords affirm that participation in the mechanism is voluntary and it is the host party’s prerogative to confirm whether the project activity assists it in achieving sustainable development. The Accords set out further rules on participation and project eligibility. To be a valid project, the emission reductions must be in addition to any emissions that would have occurred in the absence of the project. In the desire for a prompt start to CDM operations, an Executive Board was established so that project activities from 2000 could register to accrue CERs. The Executive Board, under the guidance of the COP/MOP provides a supervisory role, approving project methodologies and project activities, and overseeing the CDM. Afforestation and reforestation are the only eligible land-use and forestry projects allowed under the CDM in the first commitment period.
42 The parties also agreed on additional LULUCF activities eligible to be credited against the assigned amounts for Annex I parties. These apply to forest management, cropland management, grazing land management, and revegetation, which have to be human-induced and have occurred since 1990. However, electing to account for these sources is optional.
43 Removal by sinks generated a new category of emission reduction credits known as removal units (RMUs). To be available as a credit against emission reduction commitments, the expert review teams established by the Kyoto Protocol must verify the RMUs. The use of RMUs for the first commitment period is also subject to conditions on off-setting and country-specific numerical caps.
44 The Accords require the domestic actions of Annex I parties to constitute a significant element in meeting their commitments under the Protocol. No quantified proportion has been set with regard to domestic action vis-à-vis the use of the flexibility mechanisms. However, Annex I parties are required to provide information in their communications under the Protocol to demonstrate that their use of the mechanisms is merely supplemental to their domestic action in achieving their targets.
1. Bali Action Plan
45 In December 2007, COP 13 and COP/MOP 3 were convened as the ‘United Nations Climate Change Conference in Bali’. The main focus in Bali was on long-term cooperation, in particular the post-2012 period, when the Kyoto Protocol’s first commitment period expires. The parties sought to agree on a two-year process, called the ‘Bali Road Map’ with a goal of finalizing a regime by the end of 2009. This process includes a continuation of the work of the AWG-KP and a new Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA). The work of the AWG-LCA is guided by Decision 1/CP.13 which is referred to as the ‘Bali Action Plan’.
46 The Bali Action plan responded to the findings of the Fourth Assessment Report of the IPCC that warming of the climate system is unequivocal, and that delay in reducing emissions significantly constrains opportunities to achieve lower stabilization levels and increases the risk of more severe climate change impacts. With this in mind, the parties were looking to agree a shared vision and long-term goal for the future climate change regime.
47 The Bali Action Plan also identified the need to enhance mitigation, adaptation, technology development and transfer, and financial resources and investment.
48 Enhanced national and international action on mitigation was approached from the position of developed and developing country parties. As to developed countries, this refers to measurable and verifiable nationally appropriate mitigation actions, taking into account differences in their national circumstances. Developing countries’ actions are considered in the context of sustainable development supported and enabled by technology, financing, and capacity building. This area was a contentious issue until the parties agreed on the text relating to mitigation actions of developing countries. Through this provision, however, the parties implicitly recognized that developing countries must provide other ways to commit themselves in order to achieve a broader participation. One of the types of actions under consideration is for developing country parties to identify and carry out nationally appropriate mitigation actions (NAMAs), the incentives for which include the provision of finance and the transfer of technology.
49 Another area where developing countries may play a role in reducing or limiting emissions is through action to reduce emissions from deforestation and forest degradation (REDD). The Bali Action Plan affirmed the urgent need to take meaningful action to reduce emissions from deforestation and forest degradation in developing countries. The goal includes enhancing forest carbon stocks due to sustainable management of forests. The Subsidiary Body for Scientific and Technological Advice has also been tasked to undertake a programme of work on methodological issues relating to policy approaches and positive incentives. Controversial discussions remain on whether support for a REDD mechanism should be based on new and additional funds, or through access to the carbon market, or a mixture of both.
50 Adaptation includes international cooperation, risk management, disaster reduction strategies, and economic diversification. The urgent and immediate needs of developing countries that are particularly vulnerable to the adverse effects of climate change must continue to be taken into account. The COP also recognized the need to encourage multilateral bodies, and both public and private sectors to build synergies as a means to support adaptation.
51 Technology development and transfer shall support the actions on mitigation and adaptation. The objective is to promote access to affordable environmentally sound technologies through removal of obstacles and provisions for financial and other incentives.
52 Financial resources and investment refers to improved access to adequate and sustainable financial resources and includes support and provisions for new resources. Positive incentives and innovative means of funding, and mobilization of public and private sector funding is also to be considered. Financial and technical support for capacity building shall be used to assess the costs of adaptation in developing countries.
53 While the Bali Action Plan envisions a future global deal, the parties also agreed on immediate steps to further implement the existing commitments under the UNFCCC and the Kyoto Protocol. The outcome covered a wide range of topics, such as finalizing the Adaptation Fund and reducing emissions from deforestation in developing countries.
54 Another significant outcome from the Bali COP was the decision taken to operationalize the Adaptation Fund for developing countries particularly vulnerable to the adverse effects of climate change. The fund was being financed by a levy on CDM projects undertaken in developing countries. The proposal to appoint the Global Environment Facility (GEF) as the fund’s manager was met by opposition from developing countries. To mitigate this, the Adaptation Fund Board, operating under the guidance of the COP/MOP, has been established to supervise and manage the fund.
55 The Bali Road Map proposed a two-year, two-track process with the aim of reaching an agreement on an international response to climate change for both a further commitment period beyond 2012 and into the longer term. The AWG-LCA was tasked to develop a package of decisions that addressed the shared vision, mitigation, adaptation, finance, and technology. The AWG-KP, as noted above, was seeking agreement on quantitative targets and timetables for developed countries for a second commitment period. These two tracks have been progressing separately, primarily because the United States is not a party to the Kyoto Protocol. This has made it difficult to align the views of developed and developing parties who have different expectations for the outcome of the two-year negotiating process. In particular, developing countries were seeking a legally binding agreement to implement the outcomes of the AWG-LCA and also amendments to the Kyoto Protocol that would provide for a second commitment period for Kyoto, whereas some countries, in particular the United States, would prefer a single implementing agreement for the period post-2012. Whilst initial expectations of an outcome at Copenhagen were high, these expectations were downgraded in the lead up to the COP as it became clear that, at best, only a political agreement on key principles would be achievable.
2. Copenhagen Accord
56 In December 2009, COP 15 and COP/MOP 5 were convened in Copenhagen, amidst intense public and media scrutiny. Parties attending the COP participated with the hope of adopting a high-level political agreement that would set the basis for further negotiations to reach a legally binding agreement during 2010. During the two-week COP, negotiations were unwieldy and riven by disagreement, mainly between developed and developing countries. The AWG-KP was particularly contentious and its work was suspended on a number of occasions due to procedural interventions by countries. Nonetheless, the culmination of two weeks of chaotic negotiations—ending in last-minute negotiations between Heads of State and government—resulted in a level of political consensus around the ‘Copenhagen Accord’. Initially agreed by the United States, China, Brazil, South Africa, and India, the Copenhagen Accord was subsequently presented to the COP and ‘noted’ by the parties in Decision 2/CP.15. As such, the Copenhagen Accord represents a political declaration of the intent by its signatories to pursue the objectives set out therein but is not a legally binding agreement.
57 Whilst some commentators and critics have emphasized the shortcomings of COP 15, the Copenhagen Accord has the potential to be a significant document. The Accord contains an aspirational target of keeping global warming to below two degrees Celsius. Annex 1 parties which are signatories to the Accord have committed to implementing quantified economy-wide emissions targets for 2020 and have agreed to deliver emission reductions to be measured, reported, and verified in accordance with existing and further guidelines adopted by the COP. Furthermore, the Accord contains a pledge by developed countries to deliver significant funding to developing countries via the Copenhagen Green Climate Fund to the amount of US$ 30 billion during 2010–2012 and then scaling up funding to US$ 100 billion per year by 2020. Priority is given to funding for adaptation in the most vulnerable developing countries, including least developed countries, small island developing States, and African countries.
58 Importantly, non-Annex 1 countries have agreed for the first time to put forward domestic mitigation actions for international scrutiny. Non-Annex 1 countries may also seek international support in relation to NAMAs, such actions being subject to international measurement, reporting, and verification where support is provided.
59 The Accord also establishes a mechanism for technology transfer and a mechanism for reducing emission from deforestation and forest degradation in developing countries (REDD+). However, additional guidance from those parties that adopt the Accord will be needed in order to operationalize those mechanisms.
60 Due to the fact that the work of both the AWG-LCA and the AWG-KP were largely overtaken by the high-level focus of the Copenhagen Accord, the mandates of the AWG-LCA and AWG-KP were extended, with both working groups reporting to COP 16 in Cancun, Mexico in November 2010.
3. Cancun Decisions
61 Despite modest expectations and early signs of discord within the two-track ad-hoc AWG-LCA and AWG-KP negotiating process, COP 16 was able to deliver a reasonably balanced package of decisions, ‘the Cancun Agreements’. Nearly all delegates approved the package of measures, which ‘recognize’ the need to keep an increase in global temperature to below 2° Celsius and refer to emission cuts of 25 to 40 per cent below 1990 levels by 2020 for developed country parties.
62 The Cancun Agreements anchor the pledges made in the Copenhagen Accord and move forward key issues including REDD+, finance, adaptation, technology transfer and monitoring, reporting, and verification.
63 Key outcomes included agreeing to: establish the Green Climate Fund under the financial mechanism of the Convention to mobilize long-term financing commitments to support projects, programmes, and other activities in developing countries using thematic funding windows; establish a REDD+ mechanism; establish the Cancun Adaptation Framework and Adaptation Committee to assist in the planning and implementation of adaptation actions and technical support and guidance, as well as a work programme on loss and damage; and establish a Technology Mechanism, comprising a technology executive committee tasked with the global assessment of technology needs and a climate technology centre and network that will provide on-the-ground support to parties and facilitate prompt action on the deployment of existing technologies.
64 Whilst the Cancun Agreements still fall short of a legally binding agreement for the post-2012 period, and divisions remain regarding key issues such as commitments and actions to mitigate climate change by developed and developing countries, they nevertheless represent an important step in demonstrating parties’ willingness to work within the multilateral framework of the UNFCCC.The work of the AWG-KP and AWG-LCA will continue during 2011 with the groups reporting to COP 17 in Durban, South Africa in December 2011.
65 Climate change is a global problem that necessarily requires a global response. International cooperation is essential to limit the magnitude and rate of temperature rise and to ensure that all countries may adequately adapt to the effects of climate change. With the first commitment period of the Kyoto Protocol commencing in 2008 and concluding in 2012, the challenge is for a new agreement duly ratified by the parties that can deliver the stringent emission reductions the IPCC requires.
66 The main issue involves bridging the gap between developed and developing countries. Having achieved progress without any limitation on their emissions, developed country parties cannot expect developing country parties to increase their economic costs by giving effect to potentially costly policies on climate. The resulting mechanism will have to encourage developing country parties to participate on the basis of being provided with incentives or with compensation that meets the incremental costs to their industries, and by providing a grace period to meet specific limitations on greenhouse gas emissions for more advanced developing countries.
67 The nature of the problem also compels a long-term approach by the international community. The parties’ core obligation is to adopt national policies and take corresponding measures on mitigation by limiting their anthropogenic emissions of greenhouse gases and enhancing their greenhouse gas sinks and reservoirs. Only through regular reporting to the Conference of the Parties can compliance be monitored. Scientific and technological development is necessary because parties rely on such knowledge and advances to comply with their obligations. Moreover, further benefit is achieved by broadening participation to developing country parties through technology transfer. Funding remains an important key element in assisting developing country parties to comply with and, hopefully, expand their commitments in addressing climate change.
- RE Benedick ‘The Montreal Ozone Treaty: Implications for Global Warming’ (1990) 5 AmUJIntlL&Pol 227–34.
- D Zaelke and J Cameron ‘Global Warming and Climate Change—An Overview of International Legal Process’ (1990) 5 AmUJIntlL&Pol 249–90.
- TC Schelling ‘Some Economics of Global Warming’ (1992) 82 The American Economic Review 1–14.
- PGG Davis ‘Global Warming and the Kyoto Protocol’ (1998) 47 ICLQ 446–61.
- K Nowrot ‘Saving the International Legal Regime on Climate Change? The 2001 Conferences of Bonn and Marrakesh’ (2001) 44 GYIL 396–429.
- P Sands (ed) Principles of International Environmental Law (2nd edn CUP Cambridge 2003).
- D Freestone and C Streck (eds) Legal Aspects of Implementing the Kyoto Protocol Mechanisms: Making Kyoto Work (OUP Oxford 2005).
- F Yamin Climate Change and Carbon Markets: A Handbook of Emissions Reduction Mechanisms (Earthscan London 2005).
- D Kaniaru (ed) The Montreal Protocol: Celebrating 20 Years of Environmental Progress—Ozone Layer and Climate Protection (Cameron May London 2007).
- R Yakemtchouk ‘L’Union européenne et la protection du climat mondial’ (2007) 505 Revue du marché commun et de l’union européenne 73–83.
- C Egenhofer (ed) Beyond Bali: Strategic Issues for the Post-2012 Climate Change Regime (Centre for European Policy Studies Brussels 2008).
- D Freestone and C Streck Legal Aspects of Carbon Trading: Kyoto, Copenhagen and Beyond (OUP Oxford 2009).
- C Streck ‘The Evolution of the CDM in a Post-2012 Climate Agreement’ (2009) 18 Journal of Environment and Development 227–47.
- Conference of the Parties of the Framework Convention on Climate Change ‘Report of the Conference of the Parties on its First Session’ (28 March–7 April 1995) UN Doc FCCC/CP/1995/7/Add.1.
- Conference of the Parties of the Framework Convention on Climate Change ‘Report of the Conference of the Parties on its Second Session: The Geneva Ministerial Declaration’ (8–19 July 1996) UN Doc FCCC/CP/1996/15/Add.1, Annex.
- Conference of the Parties of the Framework Convention on Climate Change ‘Report of the Conference of the Parties on its Seventh Session: The Marrakesh Accords’ (29 October–10 November 2007) UN Doc FCCC/CP/2001/13/Add.1.
- Conference of the Parties of the Framework Convention on Climate Change ‘Report of the Conference of the Parties on its Thirteenth Session: Decision 1/CP.13: Bali Action Plan’ (3–15 December 2007) UN Doc FCCC/CP/2007/6/Add.1.
- Conference of the Parties of the Framework Convention on Climate Change ‘Report of the Conference of the Parties on its Fifteenth Session: Decision 2/CP.15: Copenhagen Accord’ (7–19 December 2009) UN Doc FCCC/CP/2009/11/Add.1.
- Intergovernmental Panel on Climate Change Climate Change 2007: Impacts, Adaptation and Vulnerability, Working Group II Contribution to the Fourth Assessment Report of the IPCC (Cambridge University Press Cambridge 2007).
- Intergovernmental Panel on Climate Change IPCC First Assessment Report (IPCC World Meteorological Organization Geneva 1990).
- Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 10 December 1997, entered into force 16 February 2005) (1998) 37 ILM 32.
- Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 16 September 1987, entered into force 1 January 1989) 1522 UNTS 3.
- Oxfam America ‘The Climate after Copenhagen: Oxfam America’s Assessment of COP-15 and the Road Ahead’ Oxfam America Briefing Note (February 2010).
- United Nations Framework Convention on Climate Change.
- United Nations Framework Convention on Climate Change (with Annexes) (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107.
- UNGA Res 43/53 ‘Protection of Global Climate for Present and Future Generations of Mankind’ (6 December 1988) GAOR 43rd Session Supp 49 vol 1, 133.
- UNGA Res 44/207 ‘Protection of Global Climate for Present and Future Generations of Mankind’ (22 December 1989) GAOR 44th Session Supp 49 vol 1, 127.
- UNGA Res 45/221 ‘Strengthening of the Office of the United Nations Disaster Relief Co-ordinator’ (21 December 1990) GAOR 45th Session Supp 49, vol 1, 281.
- Vienna Convention for the Protection of the Ozone Layer (adopted 22 March 1985, entered into force 22 September 1988) 1513 UNTS 324.
- WMO Second World Climate Conference ‘Ministerial Declaration of the Second World Climate Conference’ (adopted 7 November 1990) (1990) 1 Yearbook of International Environmental Law 473.