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Exploring Legal Form Options for a Post-2012 Climate Regime

In the run-up to the United Nations conference on climate change, scheduled to be held in Copenhagen, in December 2009 there is a great deal of discussion and speculation about what legal agreement should emerge from that conference. Given the current state of the negotiations, and the range of legal form options that countries are exploring, the most viable route for Copenhagen to adopt may be a transitional option that builds on the strengths of the Kyoto Protocol, provides a lead-in time for more ambitious engagement from key players, and eventually draws the Parties towards a simple, coherent, implementable and ambitious climate regime.

COMMENTARY

to the inter- governmental process have

Exploring Legal Form Options

been drafted in COP decision language.

for a Post-2012 Climate Regime

COPing Mechanism or COP-Out?

Although COP decisions have come to acquire considerable operational significance in in-Lavanya Rajamani ternational environmental law and in the

In the run-up to the United Nations conference on climate change, scheduled to be held in Copenhagen, in December 2009 there is a great deal of discussion and speculation about what legal agreement should emerge from that conference. Given the current state of the negotiations, and the range of legal form options that countries are exploring, the most viable route for Copenhagen to adopt may be a transitional option that builds on the strengths of the Kyoto Protocol, provides a lead-in time for more ambitious engagement from key players, and eventually draws the Parties towards a simple, coherent, implementable and ambitious climate regime.

Lavanya Rajamani (lrajamani@googlemail.com) is at the Centre for Policy Research, New Delhi.

T
here is a flurry of diplomatic activity on climate change this year. In a ddition to the 10 weeks of scheduled intergovernmental negotiations under the auspices of the UN Framework Convention on Climate Change (UNFCCC), there are processes such as the G-8, the Major Economies Forum, and that convened by the UN secretary general, all of which involve considerable investment of negotiating capital. Yet notwithstanding this intense and continuing engagement at the highestlevel many fundamental disagreements remain, including, rather tellingly, on what exactly it is that states are negotiating.

The Bali Action Plan that Parties to the UNFCCC agreed to in December 2007 launched a process to reach an “agreed outcome” on long-term cooperative action on climate change, with a scheduled end in Copenhagen, December 2009. The term “an agreed outcome” suggests a lack of agreement on both the legal form that the likely outcome of this process could take, and the level of ambition that it should reflect. If recent popular reportage is to be believed, the international community is negotiating a new “treaty”, and indeed one that is a “post-Kyoto”1 one. The negotiations, however, are poised at a far less certain moment. The differences run so deep that there is little agreement even on the legal form of the outcome.

There are a range of legal form options for a new climate instrument – from a set of Conference of Parties (COP) decisions to a legally binding instrument, either to replace or supplement the Kyoto Protocol.2 Japan, Australia, New Zealand, and Canada have expressed a preference for a new legally binding instrument that replaces the Kyoto Protocol. South Africa, Tuvalu and Costa Rica have argued for an agreement that supplements the Kyoto Protocol. India, with Brazil and Philippines, among other developing countries, is keen to limit this new agreement to decisions taken by the COP. Indeed, India’s latest set of submissions

august 8, 2009

climate regime in particular,3 COP d ecisions are fundamentally limited and limiting instruments. COP decisions are neither legally binding nor capable of creating substantive new obligations for Parties.4 India, perhaps, favours COP decisions because quantitative emission reduction targets, if any, that COP decisions may create for developing countries will not be legally binding. While the use of COP decisions may serve India’s immediate goals, narrowly construed, it does have troubling systemic implications, which, in turn, may bring into question India’s commitment to negotiating an effective and ambitious climate agreement.

First, if the Copenhagen “agreed outcome” is reflected exclusively in COP decisions, the mitigation commitments of the US, which is not a party to the Kyoto Protocol, will – like developing countries,5 but unlike the rest of the industrialised world6 – be subject to a non-legally binding regime alone. The rest of the industrialised countries will, presumably, be subject to the Kyoto Protocol’s second commitment period, as well as its compliance system. While differential treatment between industrialised and developing countries is a fundamental pillar of the climate regime’s architecture, differentiation between the US and the rest of the industrialised countries, in particular in the legal character of the commitments, may prove difficult to justify or sustain. This therefore will likely lead to two consequences:

  • (i) Kyoto Annex B Parties, who will not wish to be subject to commitments different in character, form and stringency from the US, are likely to abandon the Kyoto Protocol, a legally binding instrument with a strong compliance system, to join the US in this new aspirational regime.
  • (ii) Kyoto Annex B Parties that have defaulted on their Kyoto commitments will, by killing Kyoto, effectively avoid accountability under Kyoto’s compliance system.7
  • Second, as COP decisions cannot give rise to substantive new obligations, there can be no new obligations with respect to

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    aspects of the regime that do not touch on mitigation targets. For example, COP decisions will not permit the creation of new obligations with respect to provision by industrialised countries of the necessary “means of implementation” for developing countries to meet their mitigation goals or adaptation needs, or to the extension of the compliance system to take into account support/enablement obligations of industrialised countries. Even if new structures and frameworks are permissible on the fiction that they merely flesh out the FCCC, these, and any quantitative commitments Parties make within these frameworks will not lend themselves to enforcement.

    The COP decision route places significant limitations on the evolution, ambition and effectiveness of the climate regime, yet it is India’s preferred option. The signalling effect of such a stance is to bring into question India’s interest in an environmentally effective agreement. It is also at odds with India’s effort to press all industrial countries to take stronger commitments. It may instead be advisable for India to press for a treaty, a legally binding instrument that creates the appropriate legal framework for ensuring that substantive obligations can be negotiated, and that countries can be held to their commitments. Such a shift on “legal form” issues will signal that India is willing to put its weight behind a climate agreement that is – both in form and in substance – commensurate with the scale and gravity of the problem. And, that it is willing to think creatively on wider architectural issues, of no immediate perceived importance to itself.

    The precise obligations that India and other countries take, as part of this new treaty, are a matter for negotiation. India could negotiate an agreement in which the Bali “firewall” between industrialised country commitments and developing country actions is maintained, and which contains obligations which are both different in legal character and stringency to those of industrialised countries, as well as tied to and conditional on the provision of support. A shift on legal form does not entail a shift in the substance of India’s position on differentiation. Indeed, if anything, if the Bali firewall and the differential treatment that flows from it can be captured in the new legally binding instrument, it will

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    further strengthen the analytical core, ethical underpinnings and legal status of the principle of common but differentiated responsibility in international law.

    An Overarching Proposal

    Given the current state of the negotiations, and the range of legal form options that countries are exploring, the most viable route for Copenhagen to adopt may be a transitional option that builds on the strengths of the Kyoto Protocol, provides a lead-in time for more ambitious engagement from key players, and eventually draws Parties towards a simple, coherent, implementable and ambitious climate regime.

    This route envisages two tracks and two legally binding instruments under the umbrella of the FCCC8 – the Kyoto and Copenhagen ones – for the next one or two commitment periods, eventually leading in 2016 or 2020 (assuming four-year commitment periods continue) to a single unified track. In the transitional period, there would be negotiated targets for all Kyoto developed countries under Article 3 (9) for Kyoto’s second commitment period, and a new legal instrument, the Copenhagen Protocol, to address elements of the Bali Action Plan.

    The Copenhagen Protocol, if such a creature comes into existence, would require mitigation targets from all industrialised countries and mitigation actions (not

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    vol xliv no 32

    targets) from developing countries. The mitigation actions that developing countries take could be captured in a register of nationally-appropriate miti gation actions, as South Africa, and now Korea and Saudi Arabia suggest. In addition, there would be provisions on measurement, reporting and verification for developing country mitigation actions, and provisions on measurement, reporting and verification of the means provided to implement these actions.

    The targets that Kyoto Annex B Parties agree to for the second commitment period could be incorporated verbatim in the new agreement at the time when the agreement is adopted such that these targets would form an integral part of both Kyoto and the new agreement. The difference, however, would be that the new agreement would contain the US, a non-Kyoto industrialised country, and its target. The US target would be of the same legal character as that of other industrialised countries, but would be different in stringency to the one inscribed in Kyoto for the US.

    The Copenhagen Protocol would also include measurement, reporting and verification for industrialised country commitments, building on existing Kyoto architecture, incorporating compliance and mutatis mutandis, the Marrakech Accords;9 credible, visible and substantial means of implementation (technology, finance, capacity, and market-based instruments) for

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    mitigation and adaptation, in a measurable, reportable and verifiable manner; and a separate chapter on adaptation, consolidating existing work and adding provisions on funding and implementation. And, finally, the Copenhagen Protocol would incorporate an agreement that there would be a review in 2012/2015 of mitigation commitments by developed countries and mitigation actions by developing countries, with an understanding that this could lead to strengthening the ambition of the regime, as well as merging the two tracks.

    Two instruments in a transitional phase, albeit inelegant, would have several advantages. It would provide those industri alised countries that are not already doing so a chance to reduce greenhouse gas emissions and make progress within the context of an agreement, Kyoto, that was premised on industrialised country leadership. It would provide industrialised countries a chance to pull together means of implementation commensurate with the scale of the problem and the scale of the res ponses required of developing countries. As India’s razorsharp Ambassador Chandrasekhar Dasgupta noted in an intervention at the negotiations in Bonn in April 2009, statements that industrialised countries make on the ambition required of developing countries’ mitigation actions, are in effect statements on the ambition required of industrialised countries in terms of providing the appropriate means of implementation for these actions.

    Two instruments in a transitional phase would also provide the US, among other industrialised countries, time to assess d omestic buy-in, especially in the context of the ongoing financial crisis, the costs and benefits of different policies and measures, and to make an ambitious yet realistic international commitment. This would, in part, catalyse more proactive proposals from developing countries. It would give developing countries the comfort that their participation will be dealt with, at least at this juncture, in the context of a different legal instrument, which in itself is an acknowledgment of differential treatment. It would demonstrate that, where relevant, industrialised countries are willing to account for their non-compliance with Kyoto targets. It would provide developing countries a chance to assess domestic buy-in, and reflect on the costs and benefits of different policies and measures, the credibility, quantity and predictability of international enablement, and to arrive at an ambitious yet realistic international commitment.

    An ambitious target from the US in 2016 or 2020, as it is demonstrably complying with its less ambitious (given Kyoto benchmarks, rather than US politics) yet tangible commitment under the new agreement,10 will augur confidence, and is likely to catalyse more responsive policies and commitments from developing countries, both nationally and internationally. D eveloping countries, and India among them, would also have by then a better sense of cost and opportunity implications, having seen the new agreement and the enablement provisions in operation.

    Notes

    1 The seemingly neutral and oft-used term, “post-Kyoto,” is in fact a politically charged one. It is not the Kyoto Protocol but its first commitment period that is scheduled to come to an end in 2012. Article 3(9) of the Kyoto Protocol requires Parties to negotiate targets for indusrialised countries in

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    the post-2012 commitment period. And, there is a legal perspective COP decisions are not, absent ex non-compliance with targets by countries such as
    process underway under the Ad Hoc Working plicit authorisation, legally binding. And, COP deci- Canada, is likely to go unaddressed, as the only puni-
    Group on the Kyoto Protocol (AWG-KP) to do this. sions cannot impose substantive new obligations tive consequence that the Kyoto Protocol’s Compli
    2 3 4 See Lavanya Rajamani, “Addressing the Post-Kyoto Stress Disorder: Reflections on the Emerging Legal Architecture of the Climate Regime”, International and Comparative Law Quarterly (forthcoming, October 2009) for a detailed analysis of the legal form options available to Parties. COP decisions have enriched and expanded the normative core of the regime by fleshing out treaty obligations, reviewing the adequacy of existing obligations, and launching negotiations to adopt further obligations. COP decisions have also created an elaborate institutional architecture to supervise compliance with obligations. COP decisions may be considered as a “subsequent agreement between the Parties regarding the interpretation of the treaty or the application of its provisions” and as such will be relevant factors in interpreting the treaty (Article 31(3)(a), Vienna Convention on the Law of Treaties, 19 69). Their precise legal status, however, will depend on the enabling clause, the content of the decisions, Par 5 6 on Parties, as such substantive new obligations, would require state consent expressed through the conventional means (signature/ratification/etc). See J Brunnée “COPing with Consent: Law-Making under Multilateral Environmental Agreements”, 15 Leiden Journal of International Law 1-52 (2002) for an analysis of the status of COP decisions. Developing countries have obligations, common to all Parties, under FCCC Article 4(1) to take polices and measures on GHG mitigation. Developing countries have obligations under the Kyoto Protocol to assist industrialised countries meet their quantitative mitigation targets, as for instance through the Clean Development Mechanism, but they do not have quantitative mitigation targets themselves. The Bali Action Plan requires the Copenhagen “agreed outcome” to contain, subject to support, obligations for developing countries to take “nationally appropriate mitigation actions” (NAMAs). Except Turkey which is the only other industrialised nation which is not a party to the Kyoto Protocol. 8 9 10 ance committee can apply is a deduction at a penalty rate from the Party’s assigned amount for the second commitment period. The non- compliant country might bear international r esponsibility but that is a separate enquiry, and is as yet uncharted territory. The UNFCCC is an umbrella convention, and a whole host of protocols can be adopted under it. The Marrakech Accords are a set of COP decisions that inter alia operationalise the Kyoto Protocol’s market mechanisms, and put into place the compliance system. The Waxman Markey Bill passed by the Congress, but yet to be tested at the Senate, proposes to reduce US GHG emissions by 17% below 2005 levels by 2020. As GHG emissions in the US grew significantly between 1990 and 2005, this translates into a stabilisation target or at best a few per cent below 1990 by 2020. Kyoto, which the US signed and then rejected, required the US to take their emissions to 7% below 1990 by 2012. The Waxman Markey target, albeit representative of a significant
    ties’ behaviour and legal expectations, all of which 7 Should states decide not to negotiate a second shift in US climate policy, is still far from ambitious
    are prone to varying interpretations. From a formal commitment period to the Kyoto Protocol, in the context of the international negotiations.

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