Faculteit Rechtsgeleerdheid Universiteit Gent Academiejaar 2010-11 THE LEGAL ARCHITECTURE FOR THE POST-KYOTO CLIMATE CHANGE REGIME Masterproef van de opleiding Master in de rechten Ingediend door Lara Desimpel studentennr. 00604435 major nationaal en internationaal publiekrecht en milieurecht Promotor: Prof. dr. Frank Maes Commissaris: Nils Goeteyn
TABLE OF CONTENTS TABLE OF CONTENTS... II! ACKNOWLEDGEMENTS... VII! LIST OF ABBREVIATIONS...VIII! INTRODUCTION...IX! MASTER DISSERTATION... 1! 1.! CLIMATE CHANGE: AN OVERVIEW... 1! A.! WHAT IS CLIMATE CHANGE?... 1! B.! THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE... 3! B.1! THE INSTITUTION... 3! B.2! ITS FINDINGS... 5! 2.! THE START OF INTERNATIONAL ACTION... 6! A.! THE UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE... 6! A.1! HISTORY... 6! A.2! OBJECTIVE AND PRINCIPLES... 7! A.2.1! Objective... 8! A.2.2! The principle of common but differentiated responsibilities (CDR)... 9! A.2.3! The precautionary principle... 12! A.3! COMMITMENTS... 13! A.4! INSTITUTIONAL FRAMEWORK... 15! B.! LIKE-MINDED PARTIES FOUND EACH OTHER: NEGOTIATING BLOCKS... 18! C.! THE 1997 KYOTO PROTOCOL... 21! C.1! HISTORY... 21! C.2! COMMITMENTS... 24! C.3! INSTITUTIONAL FRAMEWORK... 29! C.4! COMPLIANCE MECHANISM... 30! II
C.5! COMMENTS... 33! 3.! 2012- THE RACE TO REPLACE KYOTO... 34! A.! IDENTIFICATION OF THE PROBLEM... 34! B.! IDENTIFICATION OF SOME KEY ISSUES POST-2012... 35! B.1! BROADENING OF THE PARTICIPATION... 35! B.1.1! Large developing nations... 35! B.1.2! The United States of America... 37! B.2! COMPLIANCE... 37! 4.! PROGRESS AFTER THE ENTRY INTO FORCE OF THE KYOTO- PROTOCOL. 38! A.! MONTREAL CONFERENCE (2005)... 38! A.1! MEETING OF THE PARTIES (CMP1)... 38! A.2! CONFERENCE OF THE PARTIES (COP11)... 40! B.! BALI CONFERENCE (2007)... 40! B.1! MEETING OF THE PARTIES (CMP3)... 41! B.1.1! AWG-KP... 41! B.1.2! Article 9 of the Kyoto Protocol... 42! B.2! CONFERENCE OF THE PARTIES (COP13)... 42! C.! COPENHAGEN CONFERENCE (2009)... 46! C.1! MEETING OF THE PARTIES (CMP5)... 47! C.2! CONFERENCE OF THE PARTIES (COP15)... 47! C.3! THE COPENHAGEN ACCORD... 48! C.3.1! Content... 48! C.3.2! Legal status... 52! D.! CANCUN CONFERENCE (2010)... 54! D.1! MEETING OF THE PARTIES (CMP6)... 54! D.2! CONFERENCE OF THE PARTIES (COP16)... 55! D.3! CANCUN AGREEMENTS... 55! III
5.! THE POST-2012 LEGAL REGIME... 58! A.! A LEGALLY BINDING REGIME?... 58! B.! WHAT EXACTLY ARE THE LEGAL OPTIONS?... 63! B.1! AMENDMENTS TO THE KYOTO PROTOCOL... 63! B.1.1! Procedure for amending the Protocol- Article 20 Kyoto Protocol... 63! B.1.2! Strengths and weaknesses... 65! B.1.3! Negotiating positions... 66! B.1.4! Current proposals?... 67! B.1.5! Will there be a gap?... 68! B.2! AMENDMENTS TO THE UNFCCC... 69! B.2.1! Procedure to amend the Convention- Article 15 UNFCCC... 69! B.2.2! Strengths and weaknesses... 69! B.2.3! Negotiating positions... 70! B.2.4! Current proposals to amend?... 70! B.2.5! Will there be a gap?... 70! B.3! A NEW PROTOCOL UNDER THE UNFCCC... 71! B.3.1! Procedure for the adoption of a protocol- Article 17 UNFCCC... 71! B.3.2! Strengths and weaknesses... 73! B.3.3! Negotiating positions... 74! B.3.4! Current proposals?... 74! B.3.5! Will there be a gap?... 75! B.4! EXPAND COP DECISIONS... 75! B.4.1! Procedure to adopt decisions... 75! B.4.2! Legal value of COP decisions... 76! B.4.3! Strengthen COP decisions by unilateral declarations?... 79! B.4.4! Strengths and weaknesses... 80! B.4.5! Negotiating positions... 81! IV
B.4.6! Will there be a gap?... 81! B.5! PROCEED OUTSIDE THE UNFCCC FRAMEWORK... 82! C.! CAN WE AVOID A GAP POST-2012?... 83! C.1! LEGAL OPTIONS TO ENSURE THAT THERE IS NO GAP... 83! C.1.1! Provisional application of a follow-up agreement... 83! C.1.2! Extending the first commitment period under the Kyoto Protocol... 85! C.1.3! Proceeding through COP decisions while working towards an LBA... 86! C.2! LEGAL IMPLICATIONS OF A GAP... 86! C.2.1! Keeping the flexible mechanisms into force after the first commitment period?... 86! C.2.1.1! In general... 86! C.2.1.2! Joint Implementation... 87! C.2.1.3! The Clean Development Mechanism... 89! C.2.1.4! Emission Trading... 90! C.2.2! Compliance mechanism... 91! 6.! CONCLUSION... 92! NEDERLANDSE SAMENVATTING... 94! INDEX OF AUTHORITIES... 96! A.! LEGISLATION... 96! A.1! TREATIES... 96! A.2! RESOLUTIONS... 96! A.3! OTHER... 96! B.! UNFCCC DOCUMENTS... 97! B.1! COP DECISIONS... 97! B.2! CMP DECISIONS... 98! B.3! UNFCCC- CUBMISSIONS FROM PARTIES... 100! B.4! OTHER UNFCCC DOCUMENTS... 101! C.! OTHER SOURCES OF INTERNATIONAL LAW... 102! V
C.1! CASE LAW OF THE ICJ... 102! C.2! UNITED NATIONS DOCUMENTS... 103! C.3! IPCC DOCUMENTS... 103! D.! WRITINGS OF LEARNED AUTHORS... 103! D.1! MONOGRAPHS... 103! D.2! ARTICLES... 108! D.3! INTERNET SOURCES... 113! E.! MISCELLANEOUS... 118! VI
ACKNOWLEDGEMENTS Although writing a master dissertation is mainly an individual work, several people have helped me in different ways. I wish to thank them for their efforts. First of all, I wish to thank my promotor, Dr. Frank Maes, who has always been enthusiastic about this topic and put documents to my disposal that helped me a lot. I am equally grateful to Nils Goeteyn, who helped me with his insightful comments. A sincere thanks to both of them for their willingness to supervise my dissertation and constructive commentaries to the text. Furthermore, I would like to thank Lieven Stalmans, who helped me look at the problem from the side of the industry, which is not very familiar to me. Lastly, a special thanks to my parents, family and friends who, with their kind support, have contributed directly and indirectly to the pages that follow below. VII
LIST OF ABBREVIATIONS AA: Assigned Amount AAU: Assigned Amount Unit AOSIS: Alliance of Small Island States AWG-KP: Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol AWG-LCA: Ad Hoc Working Group on Long-term Cooperative Action under the Convention CDM: Clean Development Mechanism CER: Certified Emission Reduction COP: Conference of the Parties CMP: Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol ERU: Emission Reduction Unit EU: European Union G-77: Group of 77 GHG: Greenhouse Gas ICJ: International Court of Justice IPCC: Intergovernmental Panel on Climate Change JI: Joint Implementation LDC: Least Developed Country NAMA: Nationally Appropriate Mitigation Action QELRO: Quantified Emission Limitation and Reduction Objective RMU: Removal Unit UG: Umbrella Group UN: United Nations UNCED: United Nations Conference on Environment and Development UNEP: United Nations Environment Programme UNFCCC: United Nations Framework Convention on Climate Change US: United States of America WMO: World Meteorological Organization WTO: World Trade Organization VIII
INTRODUCTION Background Climate change is increasingly recognized as the greatest environmental challenge of our time. Sea level rise, loss of biodiversity, increase of heat-related mortality and water stress are only some of the effects that we are experiencing, or will start experiencing in the near future. The reports of the Intergovernmental Panel on Climate Change are generally acknowledged and the conclusions of its latest report made the case for urgent action to fight climate change stronger than ever before. To combat global climate change will demand a global answer, in the form of an unprecedented international cooperation and a fundamental switch of our economy and way of living. The main cause for the problem is namely fundamental to our world economies: the burning of fossil fuels for energy use. In this sense, climate change is essentially development issue. Any solution to the problem will therefore have to embrace the needs and interests of all countries, or countries will fail to abide by it. Because of the enormous interests that are in play, progress in the negotiations is only made slowly. Fundamental disagreements between developed and developing Parties, between the United States and the European Union, between large developing nations and small islands generally dominate the negotiations. Despite the doomsday scenarios that occupy the climate change field, there is no point in taking a cynical view or apathetic stance. Even if the solution can never be perfect, many good things can happen and will have to happen. IX
Description of the problem In order to combat climate change, Parties concluded the United Nations Framework Convention on Climate Change (UNFCCC) in 1992. Five years later, the Kyoto Protocol to this Convention was adopted. Although this protocol can hardly be regarded as perfect, it indicated a significant milestone. The Kyoto Protocol sets forth emission reduction and limitation commitments for developed nations, in a specific time period from 2008 until 2012. A new agreement must enter into force by 1 January 2013, or a gap between the two legal regimes will occur. This gap would be damaging from an ecological point of view, would abate incentives for public and private entities to combat climate change and it endangers the continuation of the mechanisms established by the Kyoto Protocol. Since the entry into force of the Kyoto Protocol, Parties are negotiating on how the legal architecture of the post-2012 period should look like. Obviously, circumstances have changed a lot since the time of the conclusion of the Convention and the Kyoto Protocol. The political and economic reality of some non-annex I Parties is fundamentally different than a few decades ago. Some nations who qualified as developing nations at the time, are now members of the OECD, or classify as high-income countries in the World Bank data. Furthermore, the acknowledgement that greenhouse gas emissions of some developing nations are reaching levels close to, or as high as those of developed nations is a compelling argument to claim that the responsibility can no longer solely lie on the developed nations as such defined in the UNFCCC. Up to now, Parties have been unable to reach consensus on the post-2012 legal architecture of the climate change regime. Developed nations prefer a regime that includes obligations for all large emitters, whether they are developed or developing nations. Developing countries for their part claim that developed nations still need to take responsibility for their historical emissions, and call out that even if their average emissions are as high; the emissions per capita are still far below those of as developed nations. Despite these fundamental differences, a strong system of international governance will be necessary, both for ecological reasons and to manage the huge investments that are being made by both the public and private sector. X
Approach In this thesis, I aim to provide an overview of the problems that arise with the legal architecture of the climate change regime. I will start in the first chapter with providing a brief introduction to the process of climate change itself, the Intergovernmental Panel on Climate Change and its findings. In the second chapter, the two existing treaties on the subject, the UNFCCC and the Kyoto Protocol are examined. How did these two agreements come about? Which commitments do they contain, and how is compliance with these commitments ensured? After this overview of the existing framework, the third chapter summarizes the post-2012 problem and identifies some key issues. The fourth chapter then continues with the progress that is made with regards to a solution for the post-2012 problem. The different Conferences and Meetings of the Parties to the UNFCCC and Kyoto Protocol with relevance to the subject are analyzed. The fifth chapter lists the legal options that exist for the post-kyoto legal framework. The procedure, strengths and weaknesses, negotiating positions of the parties with regard to those options and information relating to a gap are examined. Additionally, the possibilities to avoid a gap between the first commitment period and a follow-up agreement are examined. The sixth chapter is the final chapter of this thesis. It offers a prospect with regards to the coming decisions, and gives a reflection on this dissertation. XI
MASTER DISSERTATION 1. CLIMATE CHANGE: AN OVERVIEW A. WHAT IS CLIMATE CHANGE? According to the United Nations Framework Convention on Climate Change 1, climate change means a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods (UNFCCC, article 1.2, emphasis added). The cause of this human-induced climate change is an excess of heat-trapping gases, or greenhouse-gases (GHGs). These gases operate much like the glass of a greenhouse. Under normal circumstances, part of the sun s energy radiates back into space after it has reached the earth. GHGs disturb this process, by preventing more energy from radiating back and therefore cause an additional warming of the earth. 2 GHGs mainly emanate from the burning of fossil fuels, agriculture, waste dumps and deforestation. 3 The warming that will occur due to the increase in GHGs is expected to cause severe adverse impacts on the environment, human health, economic activity, food security and natural resources. 4 More concretely, climate change will increase desertification, land degradation, the intensity of floods, the incidence of heat-related mortality, the severity of droughts, and decrease food security and crop yields. 5 By means of example; scientists believe that by 2020, 1 United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc. No. 102-38, 1771 U.N.T.S. 107 (hereinafter: UNFCCC); elaborated infra in 2.A: The United Nations Framework Convention on Climate Change. 2 UNFCCC, Fact sheet: An introduction to the United Nations Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol, http://unfccc.int/press/fact_sheets/items/4978.php. 3 IPCC (ed.), Summary for Policymakers in IPCC, Climate Change 2007: Synthesis Report, http://www.ipcc.ch/publications_and_data/ar4/syr/en/spm.html, (1) (hereinafter: IPCC, Summary Policymakers), 5. 4 IPCC (ed.), Summary for Policymakers in IPCC, Climate Change 2007: The Physical Science Basis, Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, http://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1-spm.pdf, (1) (hereinafter: Working Group I Report), 7-8. 5 Working Group I Report, supra note 4, 7-8. 1
between 75 and 250 million people in Africa will be exposed to water stress due to climate change. In some countries, yields from agriculture could be reduced up to 50%. And in large parts of the world, a significant loss of biodiversity is projected to occur. 6 The United Nations (UN) General Assembly focussed on climate change on numerous occasions. 7 In April 2007, the United Kingdom brought the matter for the UN Security Council, calling it a matter of collective security in a fragile and increasingly interdependent world. 8 It was the first -and until now only- time that the Security Council debated on the effects of climate change on international peace and security. Some governments contested the suitability of this forum, while others welcomed the initiative. 9 The view that climate change may constitute a threat to international, national and human security has also been taken up by the UN Development Program and the UN Secretary General. 10 The main scientific basis for the observance of climate change, are the reports of the Intergovernmental Panel on Climate Change (IPCC). 6 IPCC, Summary Policymakers, supra note 3, 11-12. 7 Resolution 65/159 of the United Nations General Assembly, (4 March 2011) UN Doc. A/RES/65/159; Resolution 64/73 of the United Nations General Assembly, (29 January 2010), UN Doc. A/RES/64/73; Resolution 43/53 of the United Nations General Assembly (6 December 1988), UN Doc. A/RES/43/53 (1988) (hereinafter: Resolution 43/53 GA); For an overview of all resolutions in this field: http://unbisnet.un.org:8080/ipac20/ipac.jsp?session=j1909926b348t.24241&menu=search&aspect=po wer&npp=50&ipp=20&spp=20&profile=bib&ri=1&source=%7e%21horizon&index=.sw&term=clim ate+change+and+.ud%3dares%2f*&x=0&y=0&aspect=power. 8 Security Council, SC/9000, Security Council holds first- ever debate on impact of climate change on peace, security, hearing over 50 speakers, 17 April 2007, Department of Public Information, http://www.un.org/news/press/docs/2007/sc9000.doc.htm. 9 Ibid; F. SINDICO, Climate Change: A Security (Council) Issue?, CCLR 2007, vol 1., 29-34; UNITED NATIONS ENVIRONMENT PROGRAMME, UNEP Year Book 2008- An Overview of Our Changing Environment, Nairobi, UNEP, 2008 (hereinafter: UNEP, UNEP Year Book 2008), 14; J. BRUNNÉE, Climate change, global environmental justice and international environmental law in J. EBBESSON and P. OKOWA, (eds.) Environmental law and justice in context, Cambridge, Cambridge University Press, 2008, (316) 328; C. SCHWARTE and R. BYRNE, International climate change litigation and the negotiation process, Foundation for International Environmental Law and Development Working paper 2010, http://www.field.org.uk/files/field_cclit_long_oct.pdf, (1) (hereinafter: C. SCHWARTE, International climate change litigation), 8. 10 For an overview of this estimation, see: B. WISNER et al., Climate Change and Human Security, (15 April 2007), www.radixonline.org/cchs.html. 2
B. THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE B.1 The institution In 1988, the United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO) established the IPCC. 11 The IPCC is an intergovernmental body, open to all member countries of the United Nations (UN) and the WMO. 12 Its goal is to provide clear scientific assessments on the current state of knowledge in climate change and the potential environmental and socio-economic impacts. 13 Despite the fact that the IPCC is open to all countries, not all countries have a same influence in the results. In the beginning, the IPCC struggled with legitimacy concerns because of a lack of effective participation of developing countries. It led to the establishment of an ad hoc working group to increase developing country partaking. 14 Notwithstanding efforts from an IPCC Trust Fund to help out in the financing of research in developing countries, the division between OECD 15 and non-oecd researchers in the making of the latest IPCC Assessment Report was still 2:1. 16 The work of the IPCC is divided among three working groups. The first working group examines the physical science basis, the second the impacts, adaptation and vulnerability and the third the mitigation of climate change. The IPCC does not conduct any research itself. To the contrary, it reviews and assesses information produced by thousands of scientists 11 This joint action was endorsed by the General Assembly: Resolution 43/53 GA, supra note 7. 12 Intergovernmental Panel on Climate Change, Organization, http://www.ipcc.ch/organization/organization.shtml (As of 2 April 2011, 194 countries are members of the IPCC). 13 Resolution 43/53 GA, supra note 7, 5; Intergovernmental Panel on Climate Change, Organization, http://www.ipcc.ch/organization/organization.shtml. 14 WMO/UNEP INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Report of the Second Session of the WMO/UNEP Intergovernmental Panel on Climate Change, Nairobi, World Climate Programme Publication Series, 1989, 18-20. 15 The Organization for Economic Co-operation and Development, 1961, consists of 34 member countries that negotiate, study and coordinate a social and economic policy: http://www.oecd.org/home/0,2987,en_2649_201185_1_1_1_1_1,00.html. 16 This unequal division is used by some developing countries as a ground to undermine the IPCC results: J. BARNETT and J. CAMPBELL, Climate Change and Small Island States- Power, Knowledge and the South Pacific, London, Earthscan, 2010 (hereinafter: J. BARNETT, J. CAMPBELL, Climate Change and Small Island States), 61-62; To the contrary, it is hard to see another way to remedy this situation than with a Trust Fund. 3
all over the world. 17 This assessment involves peer review by experts, as well as review by governments. Governments also participate in the plenary Sessions where results are adopted and approved. 18 If governments endorse the IPCC reports, this implies recognition of the authority of their scientific content. 19 The IPCC is considered to be the leading international body for the assessment of climate change. 20 17 Intergovernmental Panel on Climate Change, Principles governing IPCC work, Vienna, 1998, 3, http://www.ipcc.ch/pdf/ipcc-principles/ipcc-principles.pdf. 18 This participation by governments presumably even renders the results weaker than if they would have been written by scientists alone: H. E. OTT, Climate Policy Post-2012- A Roadmap, Tällberg Foundation Discussion Paper 2007, http://www.wupperinst.org/uploads/tx_wibeitrag/ott_taellberg_post-2012.pdf, (1) (hereinafter: H. E. OTT, Climate Policy Post-2012), 10. 19 Intergovernmental Panel on Climate Change, Organization, http://www.ipcc.ch/organization/organization.shtml; For example: UNFCCC, Other Action taken by the Conference of the Parties, Annex: The Geneva Ministerial Declaration, in Report of the Conference of the Parties on its second session, held at Geneva from 8 to 19 July 1996, Addendum Part Two: Action Taken by the Conference of the Parties, FCCC/CP/1996/15/Add.1, (29 October 1996) (hereinafter: Geneva Ministerial Declaration), 71, 2: Recognize and endorse the Second Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) as currently the most comprehensive and authoritative assessment of the science of climate change. 20 Geneva Ministerial Declaration, supra note 19, 2; UNFCCC, Decision 1/CP.11, Dialogue on longterm cooperative action to address climate change by enhancing implementation of the Convention, in Report of the Conference of the Parties on its eleventh session, held at Montreal from 28 November to 10 December 2005, Addendum Part Two Action Taken by the Conference of the Parties at its eleventh session, FCCC/CP/2005/5/Add.1, (30 March 2006) (hereinafter: Decision 1/CP.11), 3: Agrees that the dialogue will be informed by the best available scientific information and assessment on climate change and its impacts from the Intergovernmental Panel on Climate Change ; J. BARNETT, J. CAMPBELL, Climate Change and Small Island States, supra note 16, 53; P. W. BIRNIE, A. E. BOYLE and C. REDGWELL, International law and the environment, Oxford, Oxford University Press, 2009, 337; A. DESSLER, and E. PARSON, The Science and Politics of Global Climate Change- A Guide to the Debate, Cambridge, Cambridge University Press, 2006 (hereinafter: A. DESSLER, E. PARSON, The Science and Politics of Global Climate Change), 12; P. G. HARRIS (ed.), Europe and global climate change: politics, foreign policy and regional cooperation, Cheltenham, Edward Elgar Publishing Limited, 2007, 6; S. FREELAND, The Kyoto Protocol: An Agreement without a future?, UNSW Law Journal 2001, vol. 24, (532) (hereinafter: S. FREELAND, The Kyoto Protocol: An Agreement without a future?), 534; A. MACEY, Climate Change: Governance Challenges for Copenhagen, Global Governance 2009, vol.15, (443) (hereinafter: A. MACEY, Governance Challenges for Copenhagen), 445. 4
B.2 Its findings The IPCC s Fourth Assessment Report injected a new sense of urgency into the climate change negotiations. 21 It ensures that warming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea level. 22 According to the IPCC, it is very likely 23 that the increase in global average temperature is due to the observed increase in anthropogenic greenhouse gas concentrations. 24 The global GHG emissions due to human activities have grown since pre-industrial times, with an increase of 70% between 1970 and 2004. 25 Although this report already puts its conclusions in strong terms, it must be noted that it only reviewed scientific research published until the beginning of 2006. The Global Carbon Project, a consortium of research programmes, states that emissions have increased faster than any of the scenarios set by the IPCC. 26 The IPCC moreover submits that there is high confidence that neither adaptation nor mitigation alone, 27 can avoid all the impacts of climate change; they can complement each other to significantly reduce the risks of climate change. 28 The scientific debate between the believers and the climate change skeptics is generally over. Today, the vast majority of scientists and policy makers concurs with the findings of the IPCC. In this thesis, I will depart from the IPCC s findings without questioning these scientific data. 21 J. BRUNNÉE, From Bali to Copenhagen: Towards a Shared Vision for a Post-2012 Climate Regime?, MJIL 2010, vol.25, (86) (hereinafter: J. BRUNNÉE, From Bali to Copenhagen), 90; A. M. HALVORSSEN, Global Response to Climate Change- From Stockholm to Copenhagen, DULR 2008, vol. 85, (841) (hereinafter: A.M. HALVORSSEN, Global Response to Climate Change), 842; A. JORDAN and T. RAYNER, The evolution of climate policy in the European Union: an historical overview in A. JORDAN, D. HUITEMA, H. VAN ASSELT, T. RAYNER and F. BERKHOUT, Climate Change Policy in the European Union- Confronting the Dilemmas of Mitigation and Adaptation?, Cambridge, Cambridge University Press, 2010, (52) 71; S. OBERTHÜR, EU Leadership on Climate Change: Living up to the Challenges in European Commission, The European Union and World Sustainable Development: Visions of Leading Policy Makers & Academics, Luxembourg, Office for Official Publications of the European Communities, 2008, (41) 47. 22 Working Group I Report, supra note 4, 5. 23 Very likely means more than 90 percent likely: Working Group I Report, supra note 4, 3, no. 6. 24 Working Group I Report, supra note 4, 15; IPCC, Summary Policymakers, supra note 3, 5. 25 Ibid. 26 UNEP, UNEP Year Book 2008, supra note 9, 4. 27 Adaptation refers to the preparation for climate change that cannot be avoided, mitigation to the reduction of greenhouse gas emissions: T. E. WIRTH, A Way forward on Climate Change, HLPR 2008, vol. 2, (313) (hereinafter: T. E. WIRTH, A Way forward on Climate Change), 316. 28 Summary Policymakers, supra note 3, 19. 5
2. THE START OF INTERNATIONAL ACTION A. THE UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE A.1 History Already in the 1980 s, the UN General Assembly declared that climate change was a common concern of mankind and that necessary and timely action should be taken to deal with this issue. 29 After the presentation by the IPCC of its first Assessment Report, 30 negotiations about a Climate Treaty were initiated immediately. The actual decision to establish one single intergovernmental negotiating process, namely the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change 31, was taken by the General Assembly. 32 Only 15 months after the foundation of this Negotiating Committee, an agreement was reached. This agreement, the United Nations Framework Convention on Climate Change (UNFCCC), was signed during the United Nations Conference on Environment and Development (UNCED) in 1992. It entered into force on 21 March 1994: 90 days after the fiftieth ratification, in accordance with article 23.1 UNFCCC. 33 The UNFCCC is, as the name says, a framework treaty. This implies that from a formal point of view, the UNFCCC is legally binding, it indicates the overall objective and the guiding principles and it installs the procedures and institutions to implement the convention. To the 29 Resolution 43/53 GA, supra note 7; Resolution 44/207 of the United Nations General Assembly (22 December 1989), UN Doc. A/RES/44/207 (1989): Both resolutions were adopted without a vote, implying they obtained widespread and strong support. 30 IPCC, First Assessment Report, Cambridge, Cambridge University Press, 1990. 31 Its mandate was to prepare an adequate framework convention on climate change: IISD, Summary of the first Conference of the Parties for the Framework Convention on Climate Change: 28 March- 7 April 1995, ENB 1995, http://www.iisd.ca/download/pdf/enb1221e.pdf, (1) 1. 32 Resolution 45/212 of the United Nations General Assembly (21 December 1990), UN Doc. A/Res. 45/212 (1990), 1. 33 UNFCCC, Status of Ratification of the Convention, http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php. 6
contrary, the normative content of the convention is relatively weak. 34 When states decide to become a Party to an initial framework treaty, they still retain much of their sovereign elbowroom, as such treaty does not contain strict legal obligations. 35 Framework treaties are often 36 followed by Protocols, ensuing more stringent obligations. 37 This less demanding form of a framework convention was presumably chosen since at the time, Parties were unable to agree on concrete and binding emission limitations. 38 Nevertheless, although the UNFCCC is a framework convention, it does contain elements of a substantive agreement as well. 39 Currently, with 194 State parties and one regional economic organization, the European Union (EU), the Convention enjoys a universal membership. 40 A.2 Objective and principles 41 In most treaties, the intention of the Parties and the general principles are included in the preamble. The negotiating Parties to the UNFCCC instead decided to place them in the 34 L. RAJAMANI, Differential Treatment in International Environmental Law, Oxford, Oxford University Press, 2OO6 (hereinafter: L. RAJAMANI, Differential Treatment in International Environmental Law), 181; J. WERKSMAN and K. HERBERTSON, The Legal Character of National Actions and Commitments in a Copenhagen Agreement: Options and Implications, World Resources Institute 2009, http://www.wri.org/publication/legal-character-of-namas-in-a-copenhagen-agreement, (1) (hereinafter: J. WERKSMAN, K. HERBERTSON, The Legal Character of National Actions), 10. 35 J. BRUNNÉE, COPing with Consent: Law-Making under Multilateral Environmental Agreements, LJIL 2002, vol. 15, (1) (hereinafter: J. BRUNNÉE, COPing with Consent), 7. 36 Also in this case, see infra: 2.C The Kyoto Protocol. 37 The framework-protocol model has evolved into the most common approach for Multilateral Environmental Agreements (hereinafter: MEA): J. BRUNNÉE, COPing with Consent, supra note 34, 7; J. BRUNNÉE, The United States and International Environmental Law: Living with an Elephant, EJIL 2004, vol. 15, (617) (hereinafter: J. BRUNNÉE, Living with an Elephant), 637. 38 H. E. OTT, Climate Policy Post-2012, supra note 18,14; R. FALKNER, H. STEPHAN and J. VOGLER, International Climate Policy after Copenhagen: Towards a Building Blocks Approach, Global Policy 2010, vol. 1, (252) (hereinafter: R. FALKNER et al., Towards a Building Blocks Approach), 254. 39 See infra, 2.A.3 Commitments; D. BODANSKY, The UN Framework Convention on Climate Change: A Commentary, Yale J. Int l L. 1993, vol. 18, (451) (hereinafter: D. BODANSKY, The UNFCCC: A Commentary), 496; R. GORDON, Climate change and the poorest nations: further reflections on global inequality, University of Colorado Law Review 2007, vol. 78, (1559) (hereinafter: R. GORDON, Climate change and the poorest nations), 1583. 40 UNFCCC, Status of Ratification of the Convention, http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php (providing a list of signatories and ratification of the Convention as of 2 April 2011). 41 Although the UNFCCC contains several principles (such as sustainable development, sustainable economic growth, equity), only the principle of common but differentiated responsibilities and the precautionary principle will be examined in more detail as they are of particular relevance for the post- 2012 problem. 7
operative part of the Convention. This indicates that some states sought to emphasize the importance of these provisions and to grant them a higher legal status. 42 A.2.1 Objective The ultimate objective of the UNFCCC is to achieve stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system (UNFCCC, article 2, emphasis added). However, it was not specified what constituted dangerous anthropogenic interference with the climate system. 43 The outcome of the negotiations already reflects several differing views, concerns and interests. 44 Moreover, the lack of scientific consensus at the time made it difficult to estimate this level more precisely. Even now that scientists can determine what the likely effects of different greenhouse gas levels are; whether these effects are dangerous is actually a value judgement, and thus a policy question. 45 Currently, the common opinion is that global temperature increases should not surpass a two-degrees Celsius threshold above pre-industrial levels, in order to respect the Convention s objective. 46 42 D. BODANSKY, The UNFCCC: A Commentary, supra note 39, 497. 43 J. E. ALDY and R. N. STAVINS, Architectures for agreement: addressing global climate change in the post-kyoto world, Cambridge, Cambridge University Press, 2007 (hereinafter: J. E. ALDY, R. N. STAVINS, Architectures for agreement), 6; D. JAMIESON, The Post-Kyoto Climate: A Gloomy Forecast, GIELR 2008, vol. 20, (537) 541; A.M. HALVORSSEN, Global Response to Climate Change, supra note 21, 854. 44 J. DE MULDER and F. MAES, Verhandelbare emissierechten in het klimaatbeleid : een inventarisatie van de juridische aspecten, Universiteit Gent 2006, http://www.maritieminstituut.be/uploads/b265.pdf, (1) (hereinafter: J. DE MULDER, F. MAES, Verhandelbare emissierechten in het klimaatbeleid), 26. 45 IPCC, Summary Policymakers, supra note 3, 18; D. BODANSKY, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?, AJIL 1999, vol. 93, (596) (hereinafter: D. BODANSKY, The Legitimacy of International Governance), 621. 46 Communication from the Commission to the Council, the European Parliament, The European Economic and Social Committee and the Committee of the Regions- Limiting Global Climate Change to 2 degrees Celsius: The way ahead for 2020 and beyond, http://eurlex.europa.eu/lexuriserv/lexuriserv.do?uri=celex:52007dc0002:en:not; G8 Chair s Summary, L Aquila Summit 2009, http://www.g8.utoronto.ca/summit/2009laquila/2009-summary.html: In the G8 session, Leaders recognised the scientific view on the need to keep global temperature rise below two degrees Celsius above pre- industrial levels ; The Major Economies Forum on Energy and Climate, Declaration of the Leaders, L Aquila Summit 2009, http://www.docstoc.com/docs/44009263/declaration-by-the-leaders-of-the-major-economies-forumon-energy-and-climate: We recognize the scientific view that the increase in global average temperature above pre-industrial levels ought not to exceed 2 degrees C ; For a deeper reflection, See infra: 4.C.3.1, Content of the Copenhagen accord. 8
The legal status of this ultimate objective has in former times been subject to debate. Starting point in defining the legal status is the Vienna Convention on the Law of Treaties 47. This Convention contains rules regarding the object and purpose of treaties. Particularly, Parties have a duty not to defeat the object and purpose of a treaty 48 and a treaty shall be interpreted ( ) in the light of its object and purpose 49. Whether the stabilization of GHG concentrations qualified as the object and purpose in this sense was questioned. The adding of the word ultimate may have been an attempt to prevent the Convention s objective from being equated with object and purpose. 50 Notwithstanding the minor textual differences, the majority of authors now threats article 2 UNFCCC exactly as the Convention s object and purpose. 51 A.2.2 The principle of common but differentiated responsibilities (CDR) Parties should pursue the Convention s objective, in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, developed country Parties should take the lead in combating climate change and the adverse effects thereof (UNFCCC, article 3.1). Two features characterize States responsibilities. First, the responsibilities are common; and second, they are differentiated. That responsibilities are common is easy to understand. 1 ton of GHGs emitted in the United States (US) has the same ecological effect as 1 ton of GHGs emitted in Tanzania. This pollution cannot be confined to a geographic region; it instead poses a global environmental 47 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331; reprinted in 8 I.L.M. 679 (hereinafter: VCLT). 48 VCLT, supra note 47, article 18.1. 49 VCLT, supra note 47, article 31.1. 50 D. BODANSKY, The UNFCCC: A Commentary, supra note 39, 500; Y. KAMEYAMA and I. KUBOTA, What are the objectives meant to be? A comparative study of multilateral environmental agreements on articles on objectives, with primary attention on the United Nations Framework Convention on Climate Change, Environmental Economics and Policy Studies 2010, vol. 11, (1) 13. 51 L. RAJAMANI, Differential Treatment in International Environmental Law, supra note 34, 162; T. HONKONEN, The Principle of Common But Differentiated Responsibility in Post-2012 Climate Negotiations, RECIEL 2009, (257) (hereinafter: T. HONKONEN, The Principle of Common But Differentiated Responsibility), 267; A. M. HALVORSSEN, Common, but Differentiated Commitments in the Future Climate Change Regime- Amending the Kyoto Protocol to include Annex C and the Annex C Mitigation Fund, CJIELP 2007, vol. 2, (247) (hereinafter: A. M. HALVORSSEN, Common, but Differentiated Commitments in the Future Climate Change Regime), 255. 9
problem. No state has the capability to prevent global climate change on its own, and no state is able to isolate itself from it; all countries will have to cooperate to confine the problem. More troublesome, responsibilities are also differentiated. This differentiation is based on two criteria: countries contribution to GHG emissions and the resources they posses to take remedial measures. 52 When dealing with differentiated responsibilities, one notices that certain elements are generally accepted, while others remain highly debated. Consensus exists to the point that developing nations have contributed to a small degree to the emission of GHG and developed nations to a very high degree; and consequently, that their respective responsibilities should reflect this historical responsibility. Additionally, the majority agrees that developed nations possess more recourses to take remedial measures. 53 Contrarily, the criteria for differentiation between individual state responsibilities have become the subject of discussion. 54 Most developed countries prefer an evolving, flexible categorization of Parties to enable that differences between developing countries can be taken into account when assigning obligations. To the contrary, most developing countries oppose any form of differentiation between them, as this would disrupt the burden sharing architecture of the UNFCCC and Kyoto Protocol 55, and threaten their negotiating power. 56 52 L. RAJAMANI, Differential Treatment in International Environmental Law, supra note 34, 130; Y. MATSUI, Some Aspects of the Principle of Common but Differentiated Responsibilities, International Environmental Agreements: Politics, Law and Economics 2002, vol. 2, (151) (hereinafter: Y. MATSUI, Some Aspects of the Principle of Common but Differentiated Responsibilities), 154. 53 J. BRUNNÉE, Climate change, global environmental justice and international environmental law in J. EBBESSON and P. OKOWA (eds.), Environmental Law and Justice in Context, Cambridge, Cambridge University Press, 2009, (316-325); E. LOUKA, International Environmental Law- Fairness, Effectiveness, and World Order, Cambridge, Cambridge University Press, 2006, 54; J. BRUNNÉE, From Bali to Copenhagen, supra note 21, 93; K. W. DANISH, An Overview of the International Regime Addressing Climate Change, SDLP 2007, vol. 7, (10) 10; A. M. HALVORSSEN, Common, but Differentiated Commitments in the Future Climate Change Regime, supra note 51, 254-255; Y. MATSUI, Some Aspects of the Principle of Common but Differentiated Responsibilities, supra note 52, 154; T. E. WIRTH, A Way forward on Climate Change, supra note 27, 317. 54 This differentiation could be made based upon current emissions of countries, the per capita emissions, the historical responsibility for emissions, :J. BRUNNÉE, From Bali to Copenhagen, supra note 21, 93. 55 Kyoto Protocol to the United Nations Framework Convention on Climate Change, December 10, 1997, 37 I.L.M. 22 (hereinafter: Kyoto Protocol); for detailed information see infra: 2.C: The Kyoto Protocol. 56 L. RAJAMANI, Differentiation in the Post-2012 Climate Regime, Pol y Q. 2008, vol. 4, (48) (hereinafter: L. RAJAMANI, Differentiation in the Post-2012 Climate Regime), 48-49. 10
Notwithstanding the considerable importance of the principle in the climate change regime, there are limits to its scope. Two limitations are identified. Firstly, the CDR principle only applies for a limited time period, necessary for developing countries to reach the same level of economic growth as developed countries. Once this discrepancy in economic standard is cleared, the differential treatment should cease to apply. 57 On this point, RAJAMANI provides some sharp and justified commentary. If the CDR principle is included in the conviction that the responsibilities ought to be divided based on the different situations of countries in order to be just, one must admit that the considerable differences within the group of developing nations should also be taken into account. Currently, the nations within the Group of 77 (G-77) 58 are considered to be developing nations. But this broad brush approach neglects fundamental differences between them. Indeed, it is hard to see how countries as Singapore and Qatar, who are both classified as high-income country by the World Bank and as very high human development country by the UN Development Program, 59 can be qualified as developing countries under the climate regime, just as for example Ethiopia and Madagascar, classified as low-income and low human development countries, 60 only because of their membership of the G-77. 61 The second limitation to CDR principle implies that its application should not be incompatible with the object and purpose of the UNFCCC. As noted, a treaty must be interpreted in the light of the object and purpose of it. 62 If the implementation of the CDR principle impedes the Convention s objective from being realized, it has gone beyond the limits of the treaty. 63 57 A. M. HALVORSSEN, Global Response to Climate Change, supra note 21, 849; A. M. HALVORSSEN, Common, but Differentiated Commitments in the Future Climate Change Regime, supra note 51, 255. 58 See infra 2.B: Negotiating Blocks. 59 The World Bank, Gross national income per capita, http://data.worldbank.org/indicator/ny.gnp.pcap.cd; United Nations Development Program, Human Development Index, 2010 Report, http://hdr.undp.org/en/statistics/hdi/. 60 Ibid. 61 L. RAJAMANI, Differential Treatment in International Environmental Law, supra note 34, 164-173. 62 VCLT, supra note 47, article 31.1. 63 L. RAJAMANI, Differential Treatment in International Environmental Law, supra note 34, 162; A. M. HALVORSSEN, Global Response to Climate Change, supra note 21, 850; A. M. HALVORSSEN, Common, but Differentiated Commitments in the Future Climate Change Regime, supra note 51, 255. 11
Within the UNFCCC, the CDR principle manifests through the division of Parties into different groups, in order to take on different responsibilities 64 : Annex I countries (developed countries and countries undergoing a transition to a market economy), Annex II countries (the Annex I countries with financial obligations, i.c. OECD countries) and non-annex I countries (developing countries). The text of the UNFCCC does not mention the aforementioned limitations to the CDR principle. The absence of limitations in the text leaves room for discussions. Another example of application of CDR that could provide guidance on this point is the Montreal Protocol 65 : Developing countries are allowed a delay in compliance with the terms of the Protocol for ten years and receive financial support. Nonetheless, the substantive obligations in the Montreal Protocol are identical for both developed and developing nations. 66 The principle of common but differentiated responsibilities is not precisely defined 67 and contains no legal obligation in itself. Nonetheless, it is stated to be of sufficient legal weight to form the legal and philosophical basis for the interpretation of existing obligations and the elaboration of future international legal obligations within the context of existing instruments in the on-going regime-building process. 68 The subsequent Protocol to the UNFCCC clearly follows this principle, since it only imposes obligations on developed nations. 69 A.2.3 The precautionary principle Article 3.3 UNFCCC contains the precautionary principle, according to which parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Additionally, where there are threats of serious or 64 D. BUSHEY and S. JINNAH, Evolving Responsibility? The Principle of Common but Differentiated Responsibility in the UNFCCC, BJIL Publicist 2010, vol. 6, (1) 1; P. K. WATERMAN, From Kyoto to ANWR: Critiquing the Bush Administration s Withdrawal From the Kyoto Protocol to the Framework Convention on Climate Change, TLCP 2003, vol. 13, (749) (hereinafter: P.K. WATERMAN, From Kyoto to ANWR), 756. 65 Montreal Protocol on Substances that Deplete the Ozone Layer, September 16, 1987, 1513 U.N.T.S. 323 (hereinafter: Montreal Protocol). 66 Montreal Protocol, supra note 65, article 5: Special situation of developing countries. 67 C. D. STONE, Common but Differentiated Responsibilities in International Law, AJIL 2004, vol. 98, (276) 277-301; J. DE MULDER, F. MAES, Verhandelbare emissierechten in het klimaatbeleid, supra note 44, 27. 68 L. RAJAMANI, The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime, RECIEL 2000, vol. 9, (120) 124. 69 See infra, 2.C: The Kyoto Protocol. 12
irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures (UNFCCC, article 3.3). 70 The measures taken by Parties are affected by the precautionary principle in two ways; in timing as well as in substance. Parties should anticipate, thus take measures before actually experiencing the harm and these measures should be adopted with a margin of error, thus balance should tip in favour of more severe measures in case it is impossible to assess the environmental risk with full certainty. 71 This principle of precaution has an important role in the climate change regime, as the latter is actually founded on the premise of precaution. 72 It eventually supports the arguments of Parties who are in favour of strong international action. 73 Nevertheless, the use of the word should, instead of the mandatory language shall, indicates the principle is no hard principle. 74 A.3 Commitments As stated supra, the UNFCCC contains different commitments for the three respective groups. Certain general commitments are directed to all State Parties, both developed and developing (UNFCCC, article 4.1, 5 and 6). These commitments are qualitative, not quantitative in nature 75 and include among others: the development and publication of national inventories of anthropogenic emissions; formulation and implementation of programs to adapt to climate 70 P. K. WATERMAN, From Kyoto to ANWR, supra note 64, 756; J. CAMERON, J. ABOUCHAR, The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment, Boston College International and Comparative Law Review 1991, vol. 14, (1) 21. 71 D. BODANSKY, The Precautionary Principle and International Law, Interpreting the Precautionary Principle, http://www.libraryindex.com/pages/3381/precautionary-principle.html; C. SCHWARTE, International climate change litigation, supra note 9, 10-11; A. TROUWBORST, Precautionary Rights and Duties of States, Leiden, Martinus Nijhoff Publishers, 2006, 29. 72 S. ANDRESEN, L. WALLOE and K. ROSENDAL, The Precautionary Principle: Knowledge Counts but Power Decides? in R. COONEY and B. DICKSON, Biodiversity and the Precautionary Principle: Risk and Uncertainty in Conservation and Sustainable Use, London, Earthscan, 2005, (39) 45; INTERNATIONAL LAW ASSOCIATION (ed.), Legal Principles relating to Climate Change, The Hague Conference (2010), (1) (hereinafter: ILA, Legal Principles), 23. 73 ILA, Legal Principles, supra note 72, 23. 74 D. BODANSKY, Deconstructing the Precautionary Principle in D. D. CARON and H.N. SCHEIBER (eds.), Bringing New Law to Ocean Waters, Leiden, Martinus Nijfhoff Publishers, 2004, (381) 382; A. TROUWBORST, Evolution and Status of the Precautionary Principle in International Law, The Hague, Kluwer Academic Publishers, 2002, 73. 75 D. BODANSKY, The UNFCCC: A Commentary, supra note 39, 505. 13
change; the promotion of sustainable development and the promotion and cooperation in exchange of information (UNFCCC, article 4.1). The UNFCCC also stipulates that the extent to which developing country Parties will effectively carry out these commitments will depend on the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology (UNFCCC, article 4.7). The level of assistance from developed countries is thus a pivotal factor in the implementation of these general commitments. This arrangement constitutes a compromise between developed countries, which preferred the same methodology for the preparation of GHG inventories to be used by all countries; and developing countries, which argued that these methodologies were not appropriate for them. Parties agreed that developing countries would engage in reporting, with the precondition of developed countries paying the full costs. 76 The UNFCCC installs some additional duties for Annex I Parties. The most notable commitment for Annex I Parties is the adoption of national policies and corresponding measures on the mitigation of climate change. This mitigation should take place by limiting the anthropogenic emissions of greenhouse gases and protecting and enhancing greenhouse gas sinks and reservoirs (UNFCCC, article 4.2 (a)). These policies were purported to demonstrate that developed countries take the lead in modifying longer-term trends in anthropogenic emissions, as Parties consequently recognized that returning by the end of the decade (2000) to earlier levels would contribute to such modification. This commitment is followed by the information requirements, which are also stricter for Annex I Parties: initial reports must be communicated within 6 months of the entry into force of the Convention, and periodically thereafter, with the aim of returning emissions individually or jointly to their 1990 levels (UNFCCC, article 4.2 (b)). The combination of these two provisions (article 4.2 (a) and (b)) made some parties conclude that the UNFCCC demanded Annex I Parties to reduce their emissions by the year 2000 to the 1990 levels. However, since this article is drafted rather vaguely, without a clear connection 76 D. BODANSKY, The UNFCCC: A Commentary, supra note 39, 509. 14