I. INTRODUCTION
The issue of climate change has captured the popular imagination like no other cause in living memory. From relative obscurity in the late 1980s when it was first discussed in the UN General Assembly,Footnote 1 it has come, less than two decades later, to be characterized as ‘the defining human development challenge for the 21st century.’Footnote 2
The Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), released in 2007, warned that the warming of the climate system is unequivocal and accelerating.Footnote 3 The global average temperature has increased by 0.74 centigrade in the last century, the largest and fastest warming trend in the history of the Earth.Footnote 4 Climate change will, among other impacts, increase the severity of droughts, land degradation, desertification, the intensity of floods and tropical cyclones, the incidence of malaria and heat-related mortality, and decrease crop yield and food security.Footnote 5 There is also increasing certainty that, as the climate system warms, poorer nations, and the poorest within them, will be the worst affected.Footnote 6 Climate change, moreover, is ‘a massive threat to human development.’Footnote 7 The Human Development Report 2007–8,Footnote 8 and the Stern Review 2006,Footnote 9 underscore this.
Notwithstanding the magnitude of the problem, an effective and universal solution to address it has thus far eluded the international community. Admittedly, there are significant hurdles facing nations seeking to craft a common platform for addressing climate change. There are vast differences between countries in terms of contributions to the stock of carbon in the atmosphere, industrial advancement and wealth, nature of emissions use, and climate vulnerabilities. There is a worsening of poverty in some parts of the world, a reluctance to modify existing lifestyles or development pathways and there are differing levels of faith in technological solutions. Operating within the constraints posed by these hurdles, States have over the past two decades created a legal regime, albeit a contested one, to address climate change and its impacts.
The legal texts that comprise the climate regime—the United Nations Framework Convention on Climate ChangeFootnote 10 and its Kyoto ProtocolFootnote 11—are in force,Footnote 12 have concrete content, and are binding. Resources are in place to facilitate the negotiation processFootnote 13 and ensure emissions reductions,Footnote 14 as well as to supervise and enforce compliance with the obligations imposed by these treaties.Footnote 15
The Framework Convention and its Kyoto Protocol endorse the value of targets and timetables,Footnote 16 and require developed countries, given their enhanced historical and current contributions to the carbon stock as well as their greater wealth and technological capacity, to take the lead in assuming and meeting ambitious greenhouse gas (GHG) mitigation targets. Both these premises of the climate regime have remained contentious through the years. The United States' rejection of the Kyoto Protocol in 2001 can, in large part, be sourced to a resistance to these premises.Footnote 17 I argue in this article that the Bali Action Plan, adopted on 15 December 2007 at the 13th FCCC Conference of Parties (COP), launching a process to craft the future climate regime, offers Parties the option of jettisoning both these premises, and even the Kyoto Protocol, going forward. That is, the option of killing Kyoto softly. This is by no means the only option. Parties also have the option of arriving at an ambitious climate change mitigation strategy by 2009, albeit framed differently from the mitigation strategy in the Kyoto Protocol. This strategy will likely permit a range of mitigation actions, whatever their nature, stringency and extent, in a form that the United States (US) and large developing countries find politically palatable.
This article begins by tracing the evolution of the climate regime and outlining its conceptual apparatus. It then explains the operational significance of COP decisions such as the Bali Action Plan, and proceeds to parse and analyse the language of the Plan in support of the argument that the Bali Action Plan provides Parties the option, amongst others, of killing Kyoto softly.
II. THE CONCEPTUAL APPARATUS OF THE CLIMATE REGIMEFootnote 18
1. The Framework Convention on Climate Change
The balance of commitments under the FCCC and its Kyoto Protocol is based on the principle of common but differentiated responsibility (CBDR).Footnote 19 The core content of the CBDR principle as well as the nature of the obligation it entails is deeply contested. Both at the negotiations, and in the scholarly literature, there are at least two incompatible views on its content. One, that the CBDR principle ‘is based on the differences that exist with regard to the level of economic development’.Footnote 20 And the other, that CBDR principle is based on ‘differing contributions to global environmental degradation and not in different levels of development’.Footnote 21 There is, in addition, a fundamental disagreement as to the nature of the obligation it entails. While some argue that it is obligatory, others contend that it can be nothing but discretionary. The disagreements over this principle's content, and the nature of obligation it entails, have spawned debates over the legal status of this principle. Notwithstanding these debates, at its core the CBDR principle permits and indeed requires differential treatment between countries in the fashioning of treaty obligations. Accordingly, the FCCC and its Kyoto Protocol contain differing obligations for different countries or groups of countries. The FCCC lists 36 developed countries in Annex I, and relegates developing countries to the catch-all category of non-Annex I countries.
The FCCC requires developing countries to develop in a sustainable mannerFootnote 22 (developed countries admittedly did not) and address the adverse effects of climate change through adaptation. This responsibility is unique to developing countries in the sense that it requires developing countries to take on board sustainable development, framed in the climate context as sensitivity to GHG emissions use,Footnote 23 at a period in the trajectory of their development when, during the comparable period in their development, developed countries had no such restraints.Footnote 24
The FCCC requires developed countries to address climate change through specific mitigation commitments. The commitments under the FCCC, contained in Article 4, support this argument. While Article 4(1) relating inter alia to national inventories of anthropogenic emissions by sources and removals by sinks,Footnote 25 programmes containing measures to mitigate climate change,Footnote 26 and scientific and technological cooperation,Footnote 27 is applicable to all Parties, Article 4(2) containing specific commitments is limited to Annex I Parties.Footnote 28 Developed countries are committed by virtue of this article to aiming to return individually or jointly to their 1990 levels of anthropogenic emission of GHGs.Footnote 29
The FCCC balance of commitments between developing and developed countries is further contoured through Article 4(7) which reads:
‘The extent to which developing country Parties will effectively implement their commitments under the Convention will depend on the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology and will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties.’Footnote 30
This provision conditions developing countries' participation and implementation to developed countries' implementation of their commitments. In doing so, Article 4(7) underpins and reinforces the compact between developing and developed countries with respect to international environmental protection. The Montreal Protocol,Footnote 31 the Convention on Biological Diversity,Footnote 32 and the Stockholm Convention on Persistent Organic PollutantsFootnote 33 contain similar provisions.Footnote 34
2. The Berlin Mandate and the Kyoto Protocol
The FCCC lays down guiding principles to help Parties find an acceptable formula to address the problem, and the formula is contained in the Kyoto Protocol.Footnote 35 The Kyoto Protocol is a product of the Berlin Mandate Process. Adopted by the first COP, the Berlin Mandate proposed strengthening the commitments of Annex I Parties through the adoption of a Protocol or another legal instrument.Footnote 36 The mandate further specified that the process ‘shall’ be guided by inter alia, Article 3(1) (CBDR principle).Footnote 37 It required the process to aim at setting quantified emissions limitation and reduction objectives within specified time frames for Annex I countries but not introduce any new commitments for non-Annex I Parties.Footnote 38 The Berlin Mandate reaffirmed the CBDR principle and, in keeping with the FCCC division of responsibilities between developed and developing countries, focused on mitigation activities and thereby primarily commitments of developed countries. An Ad Hoc Working Group was set up to advance the ambition of the Berlin Mandate and as a result of its deliberations, the draft negotiating text of the Kyoto Protocol emerged and was adopted at Kyoto in December 1997.Footnote 39
The Preamble to the Kyoto Protocol makes explicit reference to both FCCC Article 3 and the Berlin Mandate.Footnote 40 Further, Article 10 of the Protocol explicitly reaffirms the CBDR principle.Footnote 41 Accordingly, the Protocol requires certain developed country Parties listed in Annex I to the FCCC to reduce their overall emissions of a basket of greenhouse gases by at least 5 per cent below 1990 levels in the commitment period of 2008–2012.Footnote 42
The Kyoto Protocol came into force on 16 February 2005, and at the first Meeting of Parties to the Kyoto Protocol and the eleventh COP, in December 2005, discussions commenced on how the climate regime might be structured after 2012. Two separate processes were initiated: an Ad Hoc open-ended Working Group to consider further commitments for developed countries beyond 2012 under the Kyoto Protocol (AWG-KP),Footnote 43 and a ‘[D]ialogue on long-term cooperative action’ under the FCCC.Footnote 44 The Dialogue, which stressed development and poverty eradication, as well as the role of technology, covered actions by all parties but was neither binding nor authorized to open negotiations leading to new commitments.Footnote 45 The initiation of the Dialogue on these terms was perceived as a compromise in that whilst it would not launch negotiations on a future regime or call for an agreed outcome, it would permit discussions on future climate actions to continue and it would keep non-Parties to the Kyoto Protocol, such as the United States, at the table. The title—‘Dialogue’—as well as the non-binding nature of the exchange of views also helped to bring developing countries on board. The Dialogue held four workshops, the last of these concluded on 31 August 2007, and led to a report by the co-facilitators of the Dialogue to the thirteenth COP.Footnote 46 The Dialogue drew to a formal close when the COP ‘took note’ of the report of the co-facilitators.Footnote 47 The COP President, however, drew attention to the need identified by Parties to enhance long-term cooperative action to address climate change, and for a decision in Bali on how this issue could be taken forward.Footnote 48 The President, after hearing views of Parties, established a contact group, chaired by the former co-facilitators of the Dialogue, and tasked it with determining the next steps to be taken. After a discussion in the contact group, the chairs produced an initial draft which, after extensive negotiation, was adopted as the Bali Action Plan on 15 December 2007.Footnote 49
The Bali Action Plan launched a process to advance the climate regime with a scheduled end at the 15th COP in 2009 at Copenhagen.Footnote 50 Other significant decisions were also taken at Bali. The AWG-KP adopted a timetable that set 2009 as the deadline for it to conclude its consideration of the scale and allocation of mitigation efforts for future commitment periods.Footnote 51 The Parties to the Kyoto Protocol launched the Adaptation Fund,Footnote 52 and decided on the scope and content of the second review of the Kyoto Protocol.Footnote 53 This article focuses primarily on those paragraphs of the Bali Action Plan that relate to the commitments and/or actions required of different groups of countries.
III. THE OPERATIONAL SIGNIFICANCE OF CONFERENCE OF PARTIES' DECISIONS IN THE CLIMATE REGIME
The Bali Action Plan is a decision taken by the Conference of Parties. Before subjecting it to the kind of textual analysis usually reserved for treaties, I need to justify and rationalize my approach to what is mere COP decision language.
Decisions rendered by Conferences of PartiesFootnote 54 may be considered as a ‘subsequent agreement between the Parties regarding the interpretation of the treaty or the application of its provisions’Footnote 55 and as such will be relevant factors in interpreting the treaty.Footnote 56 Their precise legal status, however, will depend on the enabling clause,Footnote 57 the content of the decisions, Parties' behaviour and legal expectations,Footnote 58 all of which are prone to varying interpretations. From a formal legal perspective COP decisions are not, absent explicit authorisation,Footnote 59 legally binding.Footnote 60 This does not however detract from the operational significance and legal influence that COP decisions have come to acquire in multilateral environmental agreements, and in particular in the climate regime.
The FCCC and the Kyoto Protocol authorize the Conference of Parties to engage in the progressive normative and institutional development of the regime.Footnote 61 COP decisions have enriched and expanded the normative core of the regime by fleshing out treaty obligations,Footnote 62 reviewing the adequacy of existing obligations,Footnote 63 and launching negotiations to adopt further obligations.Footnote 64 COP decisions have also created an elaborate institutional architecture to supervise compliance with obligations. For example, the Clean Development Mechanism Executive Board, the Joint Implementation Supervisory Committee and the Compliance Committee, each bodies with influence and of consequence to states and non-state actors, were constituted by COP decisions.Footnote 65 Indeed, these decisions, titled the Marrakech Accords, by setting in place both the rules of the game and the institutional structure to oversee rule compliance, were responsible for the Kyoto Protocol's entry into force. In their absence, the compliance costs of the Kyoto Protocol would have remained a mystery and few governments would have been sporting enough to have undertaken legally binding targets under conditions of unknown and even unknowable costs.
A further illustration of the operational significance of COP decisions, even in the face of an explicit delimitation of its law-making powers, is furnished in the area of compliance. The Kyoto Protocol authorizes the first COP acting at the Meeting of Parties to the Protocol (CMP) to approve procedures and mechanisms relating to compliance, but requires any procedures and mechanisms entailing binding consequences to be adopted by an amendment to the Protocol.Footnote 66 The Protocol explicitly circumscribed the law-making powers of the COP and reinforced the right of states to opt for or out of procedures that entail judicial accountability. In other words the Protocol instituted a requirement for formal consent so as to limit the independent decision-making powers of the COP.Footnote 67 Absent agreement in Montreal, however, CMP 1 adopted the procedures and mechanisms in a CMP decision, and postponed the decision to seek an amendment.Footnote 68 A formal legal account of this creation story would suggest that whilst the compliance committee could be brought into existence in this fashion, the consequences that the committee applies could not ‘bind’ (that is, lend itself to judicial enforcement).Footnote 69 Undeterred by its questionable legal antecedents, the Kyoto Protocol compliance committee, in the first case of its kind, declared Greece to be in non-compliance with its national system requirements under the Protocol, required it to produce a compliance action plan, and excluded it from participating in the market mechanisms.Footnote 70 These consequences were applied in mandatory terms i.e. they were to ‘take effect forthwith.’Footnote 71 And, unchallenged by Greece, they did.
The operational significance of COP decisions is further strengthened by the fact that agreed language is of particular import in the environmental field. Treaty language in the environmental field is often marked by constructive ambiguity reflecting and auguring protracted dissonance. Therefore, when agreement is reached, the agreed language, however tenuous the agreement and whatever the legal form it assumes, is highlighted, cited, and reproduced in subsequent legal texts (which may be of greater legal weight). Select language from the Berlin Mandate, a COP decision, for instance, is reflected verbatim in operational provisions of the Kyoto Protocol.Footnote 72 In cases where agreed language is neither defined nor sufficiently clear, and the language is reused in COP decisions, it merely shifts the locus of the debate from the treaty negotiations fora to the COP. The term ‘developing country Parties’ used in the FCCC,Footnote 73 and repeated in COP decisions relating to financial assistance, technology transfer, and capacity building,Footnote 74 provides a useful case in point. Countries who do not perceive themselves as developing countries but wish, as non-Annex I Parties, to avail the proffered assistance,Footnote 75 have requested the COP to define the term. The discussions on this issue are ongoing.Footnote 76 These examples serve to illustrate the operational and legal significance that COP decisions have come to acquire in the climate regime, particularly given the value accorded to agreed language.
In addition, COP decisions such as the Berlin Mandate and the Bali Action Plan that launch negotiations towards a legal instrument or ‘agreed outcome’ create a framework (with the attendant boundaries) for the negotiations, which Parties may but seldom diverge from. The Berlin Mandate specifically decries new commitments for developing countries, and the Kyoto Protocol contained none. The ongoing negotiations towards a Copenhagen outcome have framed the discussions with explicit reference to the mandate contained in the Bali Action Plan.Footnote 77 At the Accra Negotiations in August 2008, Parties authorized the Chair to prepare a document assembling proposals by Parties. This document will likely lead to a draft negotiating text, and it is required to be ‘in accordance with the structure of paragraph 1 of the Bali Action Plan.’Footnote 78
1. Deconstructing the Bali Action Plan
The Bali Action Plan provides a framework within which the future climate regime will be structured. A careful reading of this Plan reveals various elements that offer Parties the option of destabilizing the conceptual apparatus of the existing climate regime, and making a fundamental departure from the premises on which Kyoto is built. The elements of the framework that threaten to destabilize the existing conceptual apparatus of the climate regime are contained in the first operative paragraph of the decision, in particular in sub-paragraphs 1(b) (i) and (ii) of the Bali Action Plan. This was the final paragraph of the Action Plan to be agreed in Bali. Given its significance to the shape and structure of the future climate change regime, the remainder of this article will focus on a textual analysis of paragraph 1.
2. Launching a Process to Reach an Agreed Outcome
The chapeau to the first operative paragraph of the Bali Action Plan launches the negotiation process to advance the climate regime. It reads: [the COP] ‘[d]ecides to launch 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, by addressing, inter alia …’Footnote 79
There are at least two significant phrases in the text of the chapeau. These are the phrases ‘now, up to and beyond 2012,’ and ‘an agreed outcome.’ The first implies that the process launched at Bali is designed not just to craft a future climate regime, viz. beyond the end of the first commitment period of the Kyoto Protocol in 2012, but also to inform and guide current efforts to address climate change. This may weaken the ability of Annex I Parties that are party to the Protocol, to use the future climate regime to opt out of Kyoto Protocol's second commitment period.Footnote 80 It also encourages immediate actions in the US which is not a party to the Protocol, and is therefore not subject to the GHG mitigation constraints prescribed therein for the 2008–2012 period.
The second, ‘an agreed outcome’, suggests a lack of agreement at this point on both the legal form that the likely outcome of this process could take, and the level of ambition it should reflect. The Berlin Mandate, comparable to the Bali Action Plan, in so far as it too launched a process to advance the climate regime, explicitly specified the legal form of the outcome—‘a Protocol or another legal instrument.’Footnote 81 The legal form that the outcome of the Bali Action Plan could take, however, is deliberately left open. It could be a legally binding ‘Protocol or another legal instrument,’ but it could also be a COP decision alone viz., an agreed outcome reflected in a COP decision, the precise legal status of which, as discussed above, is a matter of some debate. The legal form of the outcome assumes particular significance if the outcome, as I argue it may do, destabilizes the conceptual apparatus of the existing climate regime, and in particular of the Kyoto Protocol.
The Bali Action Plan also stopped shy of prescribing the level of ambition that the ‘agreed outcome’ should reflect. Earlier drafts of the chapeau recommended ‘a comprehensive and effective global agreement for action’Footnote 82 and a ‘comprehensive agreement for action.’Footnote 83 Through the last few days of negotiations, the term ‘comprehensive’ ceased to refer to the action to be taken and came to qualify the process to be launched.Footnote 84 Since no particular level of ambition is prescribed, the ‘agreed outcome’ in 2009, could, on a conservative reading, merely be to continue the negotiation process for a further period of time. There is no requirement placed on Parties to agree to particular action in 2009 (viz., it does not specify the legal content the required COP decision should have) or even ‘appropriate action’ as in the Berlin Mandate.Footnote 85
3. A Shared Vision for Long-Term Cooperative Action
One of the principal objectives of the process launched at Bali is to arrive at a ‘shared vision for long-term cooperative action.’ Sub-paragraph (a) of the first operative paragraph of the Bali Action Plan which contains this objective reads: [a] shared vision for long-term cooperative action, including a long-term global goal for emission reductions, to achieve the ultimate objective of the Convention, in accordance with the provisions and principles of the Convention, in particular the principle of common but differentiated responsibilities and respective capabilities, and taking into account social and economic conditions and other relevant factors.’Footnote 86
There are a range of views on a ‘shared vision for long-term cooperative action.’ At this time, however, there is little of the vision that is shared. Some countries have specific proposals. In India's view, for instance, the climate regime should proceed on the basis of equal per capita rights to the atmosphere, and over time aim at a convergence in per capita emissions between the developed and developing world.Footnote 87 This is a view that Germany has endorsed,Footnote 88 but few others have. India is willing to commit in the meantime that its own per capita emissions will not rise beyond OECD levels.Footnote 89
Some countries conceptualize the ‘shared vision’ as a ‘long-term global goal for emissions reductions’ premised on an acceptable temperature increase of 2° C (some increase being inevitable).Footnote 90 If this goal is quantified, it would provide a global carbon budget which would enable a calculation and distribution of mitigation efforts. There are differing national and international adopted and proposed goals for 2020 and 2050, which are likely to inform the setting of a quantified global goal. The European Union has adopted unilateral targets to reduce emissions by at least 20 per cent below 1990 levels by 2020, and it has proposed an objective of 30 per cent reduction below 1990 levels by 2020 if other developed countries take comparable emissions reductions and ‘economically more advanced developing countries’ contribute ‘according to their responsibilities and respective capabilities.’Footnote 91 Their long-term vision is a reduction of developed country emissions of 60 per cent to 80 per cent by 2050, below 1990 levels.Footnote 92 The G8 summit in Hokkaido in July 2008 endorsed a goal of at least 50 per cent reduction by 2050,Footnote 93 but it did not refer to a base year from which such reductions would be measured. Japan has proposed a long-term global target of halving emissions from current levels by 2050,Footnote 94 and sector-specific mitigation goals in the meantime.Footnote 95 Iceland's climate strategy includes a goal of 50–75 per cent reduction by 2050.Footnote 96 Norway has endorsed a reduction of at least half by 2050.Footnote 97 Australia has, after a recent change in government,Footnote 98 endorsed a 60 per cent reduction from 2000 levels by 2050,Footnote 99 and, Canada, a reduction of 60–70 per cent by 2050 relative to 2006 levels.Footnote 100
Other countries conceptualize the vision as shaped by their preferred interpretations of specific principles. China believes that the vision should take into account, inter alia, the principle of common but differentiated responsibilities, and scientific and economic feasibility.Footnote 101 The US also refers to the CBDR principle in articulating its view on the shared vision.Footnote 102 The US notes, however, that ‘the notions of “responsibilities” and “capabilities” evolve as the circumstances of countries evolve in the global economy.’Footnote 103 The specific circumstance of countries it refers to are those relating to ‘evolving global emissions and economic development trends,’ which in its view are central to addressing the issue in an environmentally effective and economically sustainable manner.Footnote 104 The difficulty with an appeal to principles, however, is that each country brings its own preferred interpretation and application to bear in structuring obligations under the regime. China, for instance, perceives the CBDR principle as requiring countries like the US to undertake a 25–40% emission reduction target from 1990 levels, and for developing countries to take ‘nationally determined mitigation actions.’Footnote 105 The US, on the other hand, envisages a focus for all countries on ‘nationally appropriate actions that are measurable, reportable, and verifiable’ with an understanding that ‘meaningful contributions from countries with a significant emissions profile will be critical.’Footnote 106 The US includes China, India and other large developing countries in its list of countries with significant emissions profile.Footnote 107 The US supports the setting of a long term global goal (as yet unquantified), but it cautions that the ‘goal should not be used as a basis for burden sharing.’Footnote 108
4. The IPCC's Fourth Assessment Report and Targets for Emissions Reductions
The role that the IPCC's Fourth Assessment Report should play in shaping a shared vision for long-term cooperative action, and in particular in setting a long term global goal, and specific emission reduction targets for countries, was also at issue in Bali. The preamble to the Bali Action Plan contains references to the IPCC.Footnote 109 In particular, paragraph 4 of the Preamble reads: ‘[r]ecognizing that deep cuts in global emissions will be required to achieve the ultimate objective of the Convention, and emphasizing the urgency to address climate change as indicated in the Fourth Assessment Report of the IPCC.’Footnote 110 Earlier drafts of this paragraph contained specific targets for developed countries. Annex I Parties were required ‘as a group to reduce emissions in a range of 25–40% below 1990 levels by 2020.’Footnote 111 These targets did not survive the final round of negotiations.Footnote 112 The targets were predictably unpopular with certain developed countries,Footnote 113 but also curiously with some developing countries. The reason for this can be traced to the relevant text of the IPCC Report which prescribes reductions of 10–40% for developed countries by 2020, and 40–95% by 2050 to achieve stabilization levels of 450–550 ppm CO2 eq.Footnote 114 The IPCC notes, however, that to achieve these stabilization levels, ‘developing country emissions need to deviate below their projected baseline emissions within the next few decades‘Footnote 115 The IPCC has since quantified this deviation—a 15–30% reduction from baseline by 2020 for developing countries.Footnote 116 The targets prescribed for developed nations are premised on the expectation that certain reductions will occur in developing countries as well.Footnote 117 And, if no such reductions are to occur in developing countries, developed country reduction targets would need to be far more ambitious. These targets proved problematic for certain developed countries because they were opposed to targets in principle, and/or to these specific targets, seeing them as too ambitious. The targets also proved problematic for certain developing countries, as more ambitious reduction targets for developed countries would have provided developing countries with additional room to grow. This concern is reflected in the conclusions of the AWG-KP that indicate that the ‘ranges would be significantly higher for Annex I Parties if they were the result of analysis assuming that emission reductions were to be undertaken exclusively by Annex I Parties.’Footnote 118
In place of the disputed targets, the final text introduced a reference to the need for ‘urgency’ in addressing climate change. A footnote attached to the word ‘urgency’ takes dedicated readers first to a set of tables in the Technical Summary to the IPCC Working Group III Report, which contains a classification of stabilization scenarios according to different stabilization targets and alternative stabilization metrics, and then to a discussion on goals, participation and regime stringency.Footnote 119 The degree of urgency, presumably, is linked to the acceptable level of temperature increase (some increase being inevitable) and related stabilization targets, and since these are yet to be determined by Parties, the text refers readers to all the possible scenarios in the IPCC Report.
5. Achieving the Ultimate Objective of the Convention
The shared vision for long-term cooperative action is directed at achieving ‘the ultimate objective of the Convention.’ FCCC Article 2 (Objective) prescribes not just stabilization of GHG, but also the parameters within which such stabilization should occur.Footnote 120 Among the three parameters in Article 2 is one requiring stabilization levels to be achieved within a time frame to enable ‘economic development to proceed in a sustainable manner.’Footnote 121 The US believes that the long-term global goal must be cast ‘so as to ensure that global economic development’ as underscored in Article 2 of the Convention, is not undermined.Footnote 122 Developing country negotiators would argue however, that Article 2 only protects economic development in developing countries. If the intention had been to protect economic advancement in all countries, the term economic growth, rather than ‘economic development,’ would have been used. Some developing country negotiators also argue that the term ‘sustainable’ must be interpreted as ‘sustained.’Footnote 123 This complements an intriguing variant of the inter-generational equity argument that India presents viz., unless the current generation generates and sustains high levels of economic growth, future generations will inherit an earth that is highly vulnerable to climate change. Inter-generational equity would therefore demand that the current generation prioritise development and sustained economic growth as a matter of urgency.Footnote 124 While there is merit to the argument that sustainable development enhances adaptive capacity and increases resilience,Footnote 125 if India conceptualizes sustained economic growth as business-as-usual growth, it will make it more difficult, and in the short term more expensive for other countries to adopt a low carbon development pathway. In its turn this will render the US, and at least a few other developed countries, disinclined to engage constructively with the climate regime.
The shared vision for long-term cooperative action is required to be in accordance with the provisions and the principles of the Convention, in particular the CBDR principle. As noted above, the CBDR principle is a contentious,Footnote 126 but nonetheless central element of the conceptual apparatus of the climate regime. The shared vision is also required to take into account social and economic conditions. This mimics language in the FCCC Preamble which applies to all Parties.Footnote 127 In the context of developing countries, references to social and economic conditions are usually couched in language recognizing their legitimate or overriding priority needs for development.Footnote 128
6. Commitments/Actions Required of Developed and Developing Countries
Since its inception, the climate negotiations have witnessed intense bickering between, and within the developed and developing world over who should take responsibility, in what measure, and under what conditions to avert climate change. The Bali negotiations were no different. Sub-paragraph b (i) and (ii) relating to the actions required of developed countries and developing countries respectively, were the final pieces of text to be finalized in Bali. The language in this sub-paragraph proved to be deeply contentious for it represents a fundamental re-alignment in the balance of commitments between developed and developing nations in the climate regime. A careful reading of sub-paragraph (b) (i) and (ii) will serve to strengthen this argument.
The chapeau of sub-paragraph (b) prescribes ‘enhanced national/international action on mitigation of climate change, including, inter alia, consideration of …’ The chapeau contains the first hint of the changes to come. The term ‘national/international’ indicates that countries have the option of taking national or international action, national and international action, or choosing between the two.Footnote 129 Arguably Parties intended to keep this choice open. An editorial amendment, under the President's authority, substituting national/international into ‘national and international’ was rejected by the G-77/China.Footnote 130 Thus far, the action required of Parties, whether developed or developing, has been on the national and international plane. Even developing countries that do not have GHG mitigation targets on the international plane have reporting commitments,Footnote 131 as well as the commitment to formulate, implement, and publish national measures to mitigate climate change.Footnote 132 It is unclear what interest is to be served by retaining the option of taking national actions that are not subject to international scrutiny, given the provisions of the FCCC, but the language of the chapeau, in and of itself, permits this possibility. The chapeau also prefaces the prescribed actions that follow in (i) and (ii) with the phrases ‘including’ and ‘inter alia’ thereby indicating that these actions are illustrative rather than exhaustive of the actions that may be taken to address climate change.
1. The categories: ‘developing country parties’ and ‘developed country parties:’ To define or not to define
The use of the terms ‘developing country parties’ and ‘developed country parties,’ in the Bali Action Plan rather than the FCCC categories of ‘Annex-I’ and ‘non-Annex I’ Parties is significant,Footnote 133 not least because the use of the term ‘developing countries’ in COP decisions has, in the past, led to confusion. Some non-Annex I countriesFootnote 134 do not perceive themselves as developing countries but expect nevertheless as non-Annex I countries to be accorded differential treatment.Footnote 135 In the context the Chair had proposed that future references to developing countries should follow FCCC language viz., ‘Parties not included in Annex I.’Footnote 136 The use of the seemingly open-ended ‘developing’ and ‘developed’ rather than the static Annex I (and by extension non-Annex I)Footnote 137 in the Bali Action Plan, is designed to allow the categories of developing and developed countries to be negotiated anew.
Several developed countries are in favour of a more flexible and evolving categorisation of Parties which will permit differences within and between developed and developing countries, to be taken into account in fashioning obligations under the future climate regime. The US has long sought to differentiate between those developing countries that are major economies/emitters and those that are not.Footnote 138 The multilateral initiatives the US has launched, which include major economies/emitters alone (rather than all developing countries), stand testimony to this stance.Footnote 139 The EU also believes that differences between developing countries must be taken into account, and that the economically advanced developing countries must make ‘fair and effective contributions’ to the climate effort.Footnote 140 Japan suggests categorizing non-Annex I Parties into groups based on their stage of economic development, and encouraging mitigation actions tailored to their common but differentiated responsibilities.Footnote 141 Australia argues that if the GDP per capita of FCCC Parties is taken there are ‘more non-Annex-I Parties that are advanced economies than existing Annex-I Parties.’Footnote 142 Therefore it recommends that Parties provide on an objective basis for graduation of non-Annex I Parties to Annex I, ‘with a view to all advanced economies adopting a comparable effort towards the mitigation of greenhouse gas emissions.’Footnote 143
Bangladesh, a lone voice amongst developing countries, in its final plenary statement at Bali,Footnote 144 as well as in subsequent written submissions, stressed the ‘vast differences’ between developing countries, in particular between large developing countries and the least developed countries (LDCs).Footnote 145 Bangladesh sought unsuccessfully in the final plenary meeting to include a reference similar to the one in 1(b)(i)—'taking into account differences in their national circumstances'—in 1((b)(ii).Footnote 146
Most developing countries are opposed to any efforts to differentiate between them. Notwithstanding the emerging material differences between members of the group, they perceive themselves as sharing a common ideological vision and approach to international law,Footnote 147 and they perceive efforts to differentiate between them as threatening their identity and leveraging power. In the climate negotiations, the differences between members of the G-77, encompassing as it does both the oil exporting countries and the small island states, run deep. However the G-77 has thus far, but for a few notable occasions,Footnote 148 exhibited a tenuous yet tenacious togetherness.
Be that as it may, having used the terms ‘developing’ and ‘developed’, rather than Annex I and non-Annex I, Parties now have the formidable task of defining these terms. As Japan notes, Parties will need to ‘clarify the definition of “developed country Parties” and “developing country Parties,”’ and ‘identify the scope and criteria of those “developing country Parties” required to take actions.’Footnote 149
In theory at least, three methods exist to categorize parties to international treaties: the definition, list, and auto-election methods.Footnote 150 Across the gamut of new generation multilateral environmental agreements, not a single definition of ‘developing countries’ exists either in treaty text or in COP decisions.Footnote 151 In general, members of the G-77 are considered developing countries, and members of the Organisation for Economic Co-operation and Development (OECD) as developed countries.Footnote 152 In addition, a series of benchmarks, particular to each treaty, are used to categorize countries as ‘developing’ and therefore deserving of assistance.Footnote 153
In the climate regime, both the Intergovernmental Negotiating Committee in the run-up to the FCCC, and the Ad Hoc Group on the Berlin Mandate in the run-up to Kyoto, discussed criterion for inclusion into the annexes, but these discussions proved fruitless. The rough rule of thumb followed was that members of the OECD and those countries with economies in transition were included in Annex I of the FCCC, and OECD members were included in Annex II. In keeping with tradition, some Parties are keen to make, at this juncture, another attempt at defining and/or listing different categories of Parties, based on which differentiation between them can be effected.
It is unlikely that this attempt will be any more successful than the earlier ones, but the Bali Action Plan does permit Parties to re-negotiate the categories of Parties in the future climate regime, should they choose to do so. It is desirable that there is greater clarity in the system. Ambiguity in the classification of developing countries creates a legitimacy deficit in the system. It can hamper efficient distribution of scarce resources and it can prevent identification of those countries that bear greater responsibility for contributing to climate change. This holds true between developing countries as well as between developed and developing countries. It is important that criterion based on GHG contributions and economic capabilities be devised so as to identify the intended beneficiaries of differential treatment, and to assign responsibilities for mitigation.Footnote 154 But there are many hurdles in the way of developing such criterion. First, the terms ‘developing’ and ‘developed’ are used liberally in the ConventionFootnote 155 and the Protocol,Footnote 156 and they are understood as synonyms for non-Annex I and Annex I. Most developing countries will wish to proceed on this basis.Footnote 157 Second, once differentiation within these different categories, in particular of developing countries, starts, it will open a Pandora's Box. Many of the terms—‘developing countries’ and LDCs for instance—are, in the case of some countries, a reflection of astute political manoeuvringFootnote 158 in the UN system rather than an accurate descriptor for current social and economic ranking. To take a few examples, Maldives, currently classified as an LDC,Footnote 159 has a higher per capita income and Human Development Index ranking than India, classified as a developing country.Footnote 160 Several countries classified by the World Bank as low-income countries are not considered LDCs,Footnote 161 and several LDCs are on the World Bank's list of middle-income countries.Footnote 162 Also, Mexico and the Republic of Korea, members of OECD, Singapore, ranked 25th in the Human Development Index,Footnote 163 and Cyprus and Malta, EU member states,Footnote 164 are currently non-Annex I countries, and would likely resist an attempt to define ‘developing countries’ as this would result both in limiting their entitlement to differential treatment, as well as in expanding their exposure to mitigation targets.Footnote 165 That Mexico and the Republic of Korea fell between negotiating groups is evident from the fact that in 2001 they forged an alliance with Switzerland to negotiate thenceforth as the Environmental Integrity Group.Footnote 166 Third, there are criteria other than objective or readily justifiable ones at play, and any attempt to categorize and delineate will likely bring these to the fore. India, for instance, currently has low per capita and cumulative emissions, is 128th on the Human Development Index, 44 per cent of its population lives without access to electricity, and an estimated 80 per cent of its population lives on less than US$2 a day.Footnote 167 By most objective criterion it would not be required to prioritise mitigation commitments. It is nevertheless a country that is at the top of the industrialized world's list of ‘advanced developing countries,’ ‘emerging economies,’ ‘major economies’ etc. This presumably is due to its healthy economic growth rate,Footnote 168 attendant competitiveness concerns in developed countries, and its projected emissions growth trajectory. India's projected emissions growth rate is certainly a relevant factor, but it is unclear to what extent, given the fickle nature of economic growth on which it is dependent, and the impact that climate change is likely to have on India's monsoons to which its economy is anchored.Footnote 169 India's projected emissions growth rate may not in itself be sufficient to make the case for it to be treated as an ‘advanced developing country’ in the regime today. Are competitiveness fears, however well-founded, in the developed world legitimate concerns within the climate regime?Footnote 170 While they may implicitly drive negotiating positions, entering into a discussion of criterion for differentiation may draw attention to such not-so-objective criterion and destabilize the negotiations.
If the experience of other multilateral environmental agreements is any indication, the most politically feasible option moving forward is auto-election. Some countries may choose to accede to Annex I. Countries that are members of the OECD or the EU may have pressure brought to bear on them within the context of those arrangements to do so. For those countries that are not members of such political and economic organizations, the conditions necessary for auto-election will need to be created. They could perhaps accede to a new Annex to the FCCC, with relevant amendments, or list their measurable, reportable, and verifiable mitigation actions, pledges, or commitments in a register, should one be created.Footnote 171
2. Commitments or actions required of developed country parties
Paragraph 1(b) (i), which prescribes the commitments/actions required of developed countries reads: ‘[m]easurable, 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.’
Every clause in this paragraph and the one that follows is a delicate work of art, and merits careful examination.
Measurable, reportable and verifiable nationally appropriate mitigation commitments or actions: Developed countries' commitments under the existing climate regime are not only measurable, reportable, and verifiable,Footnote 172 but also in the case of Protocol commitments, subject to compliance procedures.Footnote 173 The future climate regime envisages the possibility—since it hopes to engage FCCC Parties that are not Party to the Kyoto Protocol, such as the US—that the mitigation commitments or actions prescribed for developed countries going forward may not be subject to the scrutiny of a compliance procedure. For non-Parties it may also be possible to take this argument further to suggest that measurement, reporting and verification could be subject to national procedures rather than international. This is contrary to China's view that ‘[m]ethodologies, verifying mechanisms, flexible mechanisms and compliance mechanism of the Kyoto Protocol shall be applicable to commitments of Annex I’ countries that are non-Parties to the Kyoto Protocol.Footnote 174 South Africa has a similar view.Footnote 175 But, China and South Africa's views are perhaps technically ill-founded. The Kyoto Protocol does not permit reservations,Footnote 176 and therefore it does not allow Parties to choose the extent of their obligations under it.Footnote 177 As such, neither can provisions of the Kyoto Protocol be selectively extended to non-Parties nor can non-Parties selectively comply with obligations and avail benefits of particular Kyoto Protocol provisions. It is possible that clones of the Kyoto Protocol mechanisms and procedures, under other names, may be created as part of the ‘agreed outcome’ of the Bali Action Plan. There is no indication, yet, however, that Parties intend this.
The use of the phrase ‘mitigation commitments or actions’ indicates that actions not amounting to targets or commitments could satisfy the demands of the new framework. Read in conjunction with the chapeau, national actions in themselves (not amounting to commitments or targets) could satisfy the new framework. The precise import of the term ‘nationally appropriate,’ however, is unclear. The term could indicate that the commitments or actions are to be tailored to national circumstances, and/or that they are to be nationally determined rather than internationally negotiated. Since references to national circumstances are peppered through out the climate treaties, as well as the Bali Action Plan, the term nationally appropriate must intend to take national specificities into account. If read in conjunction with the chapeau, moreover, it becomes clear that the term is also intended to encompass the second interpretation for the chapeau specifically carves out space for national action to suffice—such action is then presumably not subject to international negotiation.
Including quantified emission limitation and reduction objectives: At its core, the Kyoto Protocol embodies the wisdom that quantified emission limitation and reduction objectives, initially for developed countries alone, offer the most equitable and effective method of addressing climate change.Footnote 178 In the Bali Action Plan, quantified emission limitation and reduction objectives are arguably just one of the possible actions that developed countries can take to satisfy the requirements of the future climate regime. Much depends on the interpretation of the term ‘including.’ If the term is used here to suggest ‘including but not limited to’ it would render quantified emission limitation and reduction objectives obligatory, but leave the door open for additional actions to be taken. If, on the other hand, the term is used to suggest ‘including, inter alia’, then quantified emission limitation and reduction objectives would constitute just one of the illustrative actions developed countries could take. The careful placing of the comma between ‘actions’ and ‘including’ suggests, however, that the latter interpretation is the correct one.Footnote 179 It is worth noting here that several earlier drafts of the Bali Action Plan prescribe ‘quantified national emission and limitation commitments …. for all developed country Parties.’Footnote 180 Admittedly this too is a departure from the Kyoto Protocol which contains internationally negotiated quantified emission and limitation objectives rather than quantified national ones, but the final text stopped far short of even this modest ambition for the future climate regime. The Bali Action Plan lists quantified emission and limitation objectives as one of the illustrative actions possible.
By all developed country Parties: Paragraph 1(b) (i) was intended to apply only to non-Parties to the Protocol, notably, the US, as presumably the Parties to the Protocol would be bound by their existing targets for 2008–2012 and the outcomes of the AWG-KP for future commitment periods. The G-77/China proposed language in b (i) to ensure that (i) would be applicable only to ‘Annex I Parties that have not ratified the Kyoto Protocol.’Footnote 181 Earlier drafts of the Bali Action Plan used the phrase ‘all developed country Parties’ but in the context of ‘quantified national emission and limitation commitments’ for all.Footnote 182 In the final text, the extension of the potentially less rigorous Bali framework to all developed country Parties permits those that are reportedly reluctant Parties to the Kyoto Protocol, such as Canada,Footnote 183 to opt for the less stringent process/agreed outcome under the Convention. This may destabilize the Protocol regime, for if the agreed outcome of the Bali Action Plan is a COP decision, for Parties to the Kyoto Protocol compliance with such decision will not in itself forgive non-compliance with the Kyoto Protocol.Footnote 184 Those developed countries that prefer the Bali menu of options may resort to rejecting the Kyoto Protocol in favour of the agreed outcome of the Bali Action Plan.Footnote 185
While ensuring the comparability of efforts among them: Developed countries favour a range of approaches to address the climate challenge. The EU supports and will likely take stringent quantified emission limitation commitments.Footnote 186 Others like the US may opt for nationally appropriate mitigation actions. This clause requires that there be a ‘comparability of efforts’ among them. This seemingly innocuous clause, however, hides a significant departure from the Kyoto standard. First, this clause refers to ‘efforts’ not results or effectiveness. There is no requirement that there be comparable levels of achievement or results, for instance, in terms of emissions reductions. The Kyoto Protocol assesses developed countries climate actions on the results that they achieve, not on their efforts. The Bali framework embraces a fundamental shift in benchmarks or criteria for success of actions taken by developed countries. Earlier drafts used the term ‘comparability of efforts’ in the context both of ‘quantified national emission limitation and reduction commitments’ and a reference to the work of the AWG-KP.Footnote 187 Most Parties intended that this paragraph, designed primarily to bring the US on board, would contain mitigation options acceptable to the US, but in effect ensure that efforts taken by the US are comparable to efforts undertaken by other developed countries for the Kyoto Protocol's future commitment periods. In the final text, the reference to the work of the AWG-KP was dropped, and quantified emission limitation and reduction objectives were rendered optional. The phrase ‘comparability of efforts,’ however survived. In the new context, nationally appropriate mitigation commitments are compared to nationally appropriate mitigation actions which may or may not include quantified emission limitation and reduction objectives. What criteria can one use to ensure comparability of efforts between commitments and actions (which may not amount to commitments or quantified emission limitation and reduction objectives)? If both the mitigation commitments and the actions take the form of quantified emissions limitation and reduction objectives, ‘comparability of efforts’ would ensure that the targets if not equal were symmetrical in terms of the efforts required in meeting them. If, however, one is a quantified emissions limitation and reduction objective and the other is an energy efficiency measure, how might comparability of efforts be ensured?
Climate initiatives spear-headed by the US may serve to illustrate the concerns raised with this text. The US has been at the forefront of two multilateral initiatives on climate change: the Major Economies Meetings, which aims to craft a new post-2012 framework on climate change by the end of 2008;Footnote 188 and the Asia Pacific Partnership on Clean Development between Australia, Canada, China, India, Japan, South Korea and the US. The Major Economies Meetings build on the Partnership which focuses on ‘voluntary practical measures’ to ‘create new investment opportunities, build local capacity, and remove barriers to the introduction of clean, more efficient technologies.’Footnote 189 The emphasis is on an unidentified ‘long term goal’ to reduce GHGs, and the path towards this goal is clean energy technology coupled with national strategies.Footnote 190 The Major Economies Meetings, in US President Bush's words, would enable nations to develop a long term global goal and ‘establish midterm national targets and programs that reflect their own mix of energy sources and future energy needs.’Footnote 191 Neither the Partnership documents nor the Major Economies Meetings have thus far led to targets and timetables even at the national level. In essence these initiatives impose soft obligations of effort (rather than of results) and create multilateral fora for engagement (rather than for action) such that best efforts and participation in themselves will suffice. It is likely this generous yardstick the US would like to bring to the multilateral FCCC process as well.
The lost reference to the work of the AWG-KP is also of concern. A reference to the work of the AWG-KP would have ensured that the two ongoing processes—the AWG under the Kyoto Protocol and the new process under the Convention—and their outcomes would be developed and interpreted harmoniously so as to complement each other. As it stands, however, the process under the Convention, and/or its outcome could, in theory, supplant the process created under the Kyoto Protocol. The earlier reference to ‘all developed country Parties’ also lends credence to this interpretation.Footnote 192 It is worth noting here that the only reference to the Kyoto Protocol in the entire text of the Bali Action Plan is in a paragraph which records an agreement that the new process will be informed by, inter alia, ‘experience in implementation of the Convention and its Kyoto Protocol’.Footnote 193 Needless to say, since Kyoto is the preferred pejorative of climate sceptics for everything from wrong-headed government regulation to job losses and looming economic disaster, the experience referred to in this paragraph might well be negative.
3. Actions required of developing country parties
The nature and extent of developing country participation in the climate regime is a long-standing site of conflict in the negotiations.Footnote 194 Developing countries have consistently and thus-far successfully rejected mitigation targets.Footnote 195 The Bali Action Plan, arguably, represents a step forward in fostering more proactive mitigation actions from developing countries. Indeed, the adoption of the Bali Plan of Action, in itself, is an advance from the G-77/China's position—firmly held and carried through in the framing document initiating the Dialogue.Footnote 196 The Dialogue was not authorized to open negotiations leading to new commitments, but it has. This is an achievement.
Paragraph 1(b) (ii) which prescribes the actions required of developing countries reads: ‘[n]ationally appropriate mitigation actions 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.’
Measurable, reportable and verifiable: The placement of the phrase ‘measurable, reportable and verifiable’ within this sub-paragraph was the final element of the Action Plan at issue in Bali. The COP President's text issued the day after the scheduled end of the conference, placed this phrase at the very beginning of this sub-paragraph, such that, the first line was a mirror image of the text pertaining to developed countries. India, supported by the G-77/China, successfully insisted that this phrase be placed at the end of the sub-paragraph. Much hinges on the precise placement of this text. As it stands, at least four interpretations are possible.
First, the phrase ‘measurable, reportable and verifiable’ applies to both nationally appropriate mitigation actions and to the provision of technology, financing and capacity-building. Thus, both developed and developing countries would have to fulfil their commitments in a measurable, reportable and verifiable manner. The interpretative statements delivered during the final Plenary by various developing countries, including by Pakistan, as Chair of the G-77/China support this interpretation.Footnote 197
Secondly, the phrase ‘measurable, reportable and verifiable’ applies only to the provision of technology, financing and capacity-building. This interpretation, albeit favoured by a few of the more conservative amongst the developing countries, distorts the plain meaning of the text. There is a well-considered comma that creates the embedded clause on technology, financing and capacity-building, and subjects it as well as ‘nationally appropriate mitigation actions’ to measurement, reporting and verification.
Thirdly, the phrase ‘measurable, reportable and verifiable’ applies only to those nationally appropriate mitigation actions that have been supported and enabled by technology, financing and capacity-building (in a measurable, reportable and verifiable manner). The reasoning behind the third interpretation is this. Not all nationally appropriate mitigation actions will lend themselves to measurement, and therefore necessitate reporting and verification. The text in this sub-paragraph offers a principled basis to distinguish between those actions that are required to be measured, reported and verified, and those that are not so required viz., only those mitigation actions that are supported and enabled by technology, financing and capacity-building in a measurable, reportable and verifiable manner will be subject to measurement, reporting and verification. In this rendering, the assistance would have to be provided in the required manner as a condition precedent to measurement, reporting and verification of mitigation actions in developing countries.
Fourthly, since the phrase ‘measurable, reportable and verifiable’ is not qualified by a requirement that the measurement, reporting and verification be carried out at the international level, it could be argued, as China has, that mitigation actions by developing countries should be subject only to national procedures for measurement, reporting and verification.Footnote 198 The flip side of this argument is that it could apply to the provision of technology, financing and capacity-building as well.
The choice that countries make between these, and other possible interpretations, in the lead up to the 2009 deadline, will determine the level of ambition in the future climate regime. If the more conservative interpretations are favoured—encompassing national measurement, reporting and verification procedures for nationally determined mitigation actions, and even that, only when technology, finance and capacity building is forthcoming—then at best the Bali Action Plan will represent only a modest advance on FCCC Article 4 (1) (b) and 4(7). Article 4(1)(b) requires all Parties to formulate, implement, publish and regularly update national and regional programmes containing measures to mitigate climate change,Footnote 199 while Article 4(7) conditions developing countries' implementation to developed countries' provision of technology transfer and financing.Footnote 200
Supported and enabled by technology, financing and capacity building: If mitigation actions can be interpreted to be subject to national procedures on measurement, reporting and verification alone, so too perhaps can actions related to technology, financing and capacity-building. Technology, financing and capacity building, however, are Convention obligations,Footnote 201 endorsed in the Kyoto ProtocolFootnote 202 and compliance with these obligations, at least in theory, falls within the remit of the facilitative branch of the Kyoto Protocol compliance committee.Footnote 203 In practice, however, the technology and financing provisions are drafted in such a manner as to render the application of such compliance procedures unlikely. This is because the legal content of FCCC Articles 4(3) and 4(5) is fairly limited. The technology transfer obligation is hedged in with phrases such as ‘as appropriate’ and ‘all practicable steps.’Footnote 204 To discharge this obligation, developed countries would only need to show that they have taken practicable steps to transfer technology, not that they have actually transferred technology. The financial assistance provision is less guarded in that it requires that developed countries ‘shall provide new and additional financial resources,’ but it is nonetheless constructed to ensure that the provision of resources is linked to the implementation of specific commitments, such as reporting, and that the costs are ‘agreed’ to by the developing country in question and the operational entity of the financial mechanism.Footnote 205
Further, the text on technology, financing and capacity building in paragraph 1(b) (ii) does not identify those tasked with providing this support. It is possible to interpret this text therefore as referring to provision of support not only from developed countries but also through international organizations, public and private, and even perhaps developing countries themselves.Footnote 206 It could for instance, refer to technology, financing and capacity-building channelled through the Clean Development Mechanism (CDM).Footnote 207 In India the vast majority of CDM projects are unilateral, viz they do not involve an investor developed country and the necessary technology, financing, and capacity building is arranged by the domestic investor entrepreneur. Will such provision, albeit not by a developed country, be sufficient to trigger measurement, reporting and verification of mitigation actions in paragraph 1(b) (ii)?Footnote 208 Or will this be deemed to be covered since, whatever the form of the Clean Development Mechanism project, the Certified Emission Reductions are eventually bought by industrialized countries?
IV. KILLING KYOTO SOFTLY? A ‘POST-KYOTO’ REGIMEFootnote 209 IN THE MAKING
This analysis of a single, but crucially significant, paragraph of the Bali Action Plan reveals both a shift in the rules of the climate game as well as realignment in the balance of commitments between developed and developing countries.
The Bali framework creates a host of options for countries to consider in the future climate regime. Developed countries can choose between: national and/or international action; commitments or actions; quantified emission limitation and reduction objectives or other actions; benchmarks or criteria for success based on results or on efforts; and, measurement, reporting and verification through national or international procedures. Developing countries can choose between: measurement, reporting and verification through national or international procedures; measurement, reporting and verification of nationally appropriate mitigation actions as well as technology, financing and capacity building or only of the latter, or only the former when the latter is forthcoming.
Parties may well choose the more environmentally responsible options going forward, and the ‘agreed outcome’ in 2009 may contain an effective solution tailored to the magnitude and gravity of the climate problem. The text as it stands, however, allows countries choices between options, many of which if exercised, will militate against the central premises of the Kyoto Protocol.
The Kyoto Protocol contains obligatory (not discretionary or voluntary) emission reduction targets for developed countries hence it endorses commitments (and not just actions). It favours internationally-negotiated commitments, albeit implemented nationally and regionally (rather than nationally-determined ones). It gives pride of place to quantified emission limitation and reduction objectives (over policies and measures). It assesses performance against targets and timetables (rather than on efforts) and provides international measurement, reporting, verification and compliance procedures. Moreover, the Kyoto Protocol endorses and underscores the notion that developed countries should lead by example in assuming and meeting GHG reduction targets.
Under the realigned balance of commitments permissible in the Bali Action Plan, it is conceivable that the US and India may subject themselves or be subject in the future climate regime to the same requirements, that is, to ‘nationally appropriate mitigation actions.’ Actions in both these countries will be voluntary, nationally determined and tailored.Footnote 210 The actions will be measurable, reportable and verifiable but possibly under national reporting procedures alone.Footnote 211 In the case of India the nationally appropriate mitigation actions will need to be in the context of sustainable development, and supported and enabled by technology, financing and capacity building—also in a measurable, reportable and verifiable manner—but such support could be from national, bilateral, multilateral or other sources. This is a far cry from the differential treatment between developed and developing countries contained in the Kyoto Protocol.Footnote 212
The US objection to the Kyoto Protocol is long-standing. In the negotiations at Bali, the US ensured that there is no reference to the AWG-KP and only a non-committal one to the Kyoto Protocol in the Action Plan. In the process forward, the US urges ‘creative thinking’ in areas ‘where past approaches may no longer be adequate.’Footnote 213 Elsewhere it reiterates that ‘we should not be bound by previous ways of looking at things.’Footnote 214 It reminds us that ‘the world in 2008 is different from the world in 1992, in important ways.’Footnote 215 It is this openness to ‘creative’ thought, and resistance to the premises of the Kyoto Protocol, that the US brought to bear in the negotiations on the Bali Action Plan, and presumably will bring to the table in the road ahead.
Whether the agreed outcome in 2009 will effectively jettison the premises of the Kyoto Protocol or not, will depend on the options countries exercise in the lead up to the 15th COP in Copenhagen. The AWG-KP process is also scheduled to come to an end in 2009. Unlike the Bali Action Plan, the AWG-KP conclusions highlight the IPCC estimates that to stabilize emissions at the lowest levels Annex I Parties as a group would have to reduce emissions in a range of 25–40 per cent below 1990 levels by 2020.Footnote 216 It is possible that the AWG-KP will conclude its work by adopting ambitious reduction targets in line with IPCC estimates for all developed countries that are Party to the Kyoto Protocol. In such event, paragraph 1(b) (i) will in practice only be availed of by the US, and 1(b) (ii) by large developing countries. A significant factor pressing in favour of this pro-Kyoto outcome is the investments—financial, infrastructural and institutional—which have been made in the carbon market, predicated on the existence of firm GHG targets and therefore an appropriate price for carbon. However, much will depend on political and economic developments the world over, in particular, in the US in the next few years. But, the necessary options should countries so choose—to make a fundamental departure from the premises on which Kyoto is built viz, to kill Kyoto softly—exists in the framework of the Bali Action Plan.
1. A Few Procedural Hurdles in the Way
It is worth referring, in passing, to a few procedural hurdles that lie in the way of crafting an ambitious new climate regime in the allocated time. First, if there is to be a Protocol as part of the ‘agreed outcome,’ how will it be adopted? FCCC Article 17 relating to Protocols does not specify a voting requirement for adoption of Protocols.Footnote 217 In its absence and in the absence of adopted Rules of Procedure governing voting,Footnote 218 unless Parties adopt a particular voting procedure ad hoc, any new Protocol will need to be adopted by consensus. This will in turn likely limit the substantive ambition of the Protocol, whether in its clear terms, or as reflected in the proliferation of constructively ambiguous phrases or framework/guiding language. FCCC Article 17 also requires that the ‘text of any proposed protocol shall be communicated to the Parties by the Secretariat at least six months before such a session.’ A similar rule applies to proposed amendments to the FCCCFootnote 219 and the Kyoto Protocol.Footnote 220 The relevant treaty provisions do not provide any guidance on the nature of the text that is required to be communicated six months in advance of Copenhagen. Does the text have to be bracket-free agreed text, draft negotiating text, substantially agreed text, or a compilation of Parties' proposals? Are there any minimum requirements in terms of structure and coherence in the proposed text? Or is it sufficient merely that it be labelled a Protocol? Since Parties are free to submit and propose fully-crafted alternative Protocols or competing amendments for adoption, the text referred to must mean draft text, subject to subsequent negotiation. However, if the six-month rule is intended to give Parties time for reflection on the proposed protocol, an unstructured much-bracketed, many-optioned text may not serve the purpose. Parties may therefore have to decide both that they wish to adopt a new Protocol, as well as to reach a relatively well structured and coherent draft negotiating text by June of 2009. There is no agreement on the former as yet and limited likelihood of the latter as a result, unless an extraordinary COP is scheduled for the spring/summer of 2009.
Moving forward, Parties will also need to determine the elements of the ‘agreed outcome’ that necessitate amendments to the FCCC, those that are best be reflected in a new Protocol, and those that could be adopted by COP decisions. This determination will need to be made keeping in mind the extent to which Parties wish for the new regime, or some of its elements, to be embodied in a legally binding form. While legally binding treaty language may be appealing given the severity of the problem and its political signalling effects, a treaty will likely take several years to enter into force, depending both on the entry into force requirements that Parties introduce in the treaty and domestic ratification procedures. At least some elements of the new regime may be embodied in COP decisions, which often impose mandatory requirements without being legally binding, and which can be applied immediately. If the Kyoto and FCCC tracks continue to operate in parallel, Parties will also need to untangle and ensure coherence across the complex institutional supervision and compliance systems that are in place under Kyoto and those that will be created to measure, report and verify under the ‘agreed outcome.’ No mean task.
V. SOME CONCLUSIONS
The Bali Action Plan represents an advance in several respects. The Dialogue, which was not authorized to open negotiations leading to new commitments, in effect, did precisely this, thereby paving the way for a future climate regime. The Bali Action Plan requires that now and in this future climate regime developing countries as well as all developed countries take measurable, reportable and verifiable mitigation actions. This is necessary in light of existing and likely cumulative GHG contributions of certain countries. According to the 2007 World Energy Outlook, if current policies continue unchecked, CO2 emissions will increase by 57 per cent between 2005 and 2030, with the US, China, India and Russia contributing to two-thirds of this increase.Footnote 221 India is predicted to become the third largest emitter by 2015, after China and the US.Footnote 222 In the circumstances, achieving the ultimate objective of the climate regime will require stringent mitigation actions in the US, which opted out of the Kyoto regime in 2001, as well as in certain developing countries (where reductions will be from business as usual increases, not in absolute terms).Footnote 223 It is appropriate that the mitigation actions required of developing countries are not framed as commitments. This is in keeping with the effort sharing arrangement, the need for economic and social development in developing countries—characterized in the Bali Action Plan as ‘global priorities’Footnote 224—and the historical and current GHG contributions of developed countries.Footnote 225 It is also appropriate that the differences between developing countries be considered in allocating efforts and resources under the future climate regime. The Bali Action Plan permits such differentiation or at least a possible re-negotiation of the categories of developing and developed countries. Finally, the emphasis in the Bali Action Plan on national strategies and actions, albeit a departure from Kyoto requirements, may permit experimentation with inexpensive mitigation options tailored to national circumstances and experiences. This may lead in due course to a better sense of cost implications, political palatability, and co-benefits, and it may therefore facilitate negotiations over commitments and effort-sharing.
Of these advances, perhaps the most significant is the substantive re-engagement of the US with the climate regime. But this was wrought at considerable cost to the premises on which the Kyoto Protocol is built, of which leadership from developed countries in mitigating climate change is just one. Developed countries have the option in the Bali Action Plan of taking commitments or actions, and these actions may or may not include quantified emission limitation and reduction objectives. This is disappointing given the effort sharing arrangement, their historical and current GHG contributions, and their inability in large part to meet even the modest ambition of the existing climate regime. Indeed if it had not been for the collapse of the economies of the former USSR, emissions levels in Annex I countries as a group would have increased significantly. The latest National Communications from Annex I Parties indicate that Annex I Parties as a group had by 2005 reduced their GHG emissions to 2.8 per cent below 1990 levels.Footnote 226 The vast majority of the reductions occurred, however, in Annex I economies in transition where GHG emissions are 35.2 per cent below 1990 levels.Footnote 227 Other Annex I countries, have as a group increased their emissions by 11 per cent from 1990 levels.Footnote 228 Of these, the EU Member States are reportedly on track to meet their Kyoto commitments,Footnote 229 and possibly Japan,Footnote 230 but not the others. The US emissions are 16.3 per cent above 1990 levels.Footnote 231 Canada's emissions are 25.3 per cent above 1990 levels.Footnote 232 Australia's emissions are 25.6 per cent above 1990 levels.Footnote 233 To offer these developed countries the option of taking nationally determined mitigation actions in the future climate regime is to reward their resistance to global response to the climate change problem built on cooperation, solidarity and mutual aid, and to hamper the ability of the international community to address ‘the defining human development challenge for the 21st century.’
