Climate change negotiations update: Process and prospects for a Copenhagen agreed outcome in december 2009

Review of European Community and International Environmental Law

Volumn 18, Issue 3, 2009, Pages 229-243

  Kulovesi, Kati ^a   Gutiérrez, María ^b  

^a UNIVERSITY OF HELSINKI   (Finland)

^b INTERNATIONAL INSTITUTE FOR SUSTAINABLE DEVELOPMENT   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

CAPACITY BUILDING; CLIMATE CHANGE; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLICY; INTERNATIONAL AGREEMENT; INTERNATIONAL COOPERATION; POLICY IMPLEMENTATION; TECHNOLOGY ADOPTION; UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE;

COPENHAGEN [(CTY) HOVEDSTADEN]; DENMARK; HOVEDSTADEN;

EID: 75649139538     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2009.00646.x     Document Type: Article

References (107)

1. United Nations Framework Convention on Climate Change (New York, 9 May 1992) (UNFCCC).
2. Decision 1/CP.13, Bali Action Plan (FCCC/CP/2007/6/Add.1, 14 March 2008).
3. Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto, 12 December 1997).
4. Decision 1/CMP.1, Consideration of Commitments for Subsequent Periods for Parties included in Annex I to the Convention under Article 3, Paragraph 9, of the Kyoto Protocol (FCCC/KP/CMP/2005/8/Add.1, 30 March 2006).
5. These are industrialized countries, including Eastern European countries with 'economies in transition'. They include all Western European countries plus the EU (as a single party), Japan, Australia, Canada, New Zealand, the Russian Federation, the Baltic States and most Central and Eastern European States. The USA is also an Annex I party under the Convention, but is not a party to the Kyoto Protocol.
6. C. Spence et al. Understanding Bali and the Climate Change Negotiations Process 17 : 2 RECIEL (2008 142
7. The deadline and the AWG-KP's mandate derive from Article 3.9 of the Kyoto Protocol, which indicates that negotiations on Annex I parties' further commitments must be launched at least 7 years before the end of the first commitment period, i.e. in 2005.
8. See C. Spence et al., n. 6 above, at 144-145.
9. Article 3.1 of the UNFCCC, n. 1 above, provides that 'The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof'.
10. UNFCCC Secretariat, Investment and Financial Flows to Address Climate Change: An update (FCCC/TP/2008/7, 26 November 2008).
11. AWG-LCA 6 Revised Negotiating Text (FCCC/AWGLCA/2009/INF.1, 22 June 2009).
12. I. Fry Twists and Turns in the Jungle: Exploring the Evolution of Land Use, Land-use Change and Forestry within the Kyoto Protocol 11 : 2 RECIEL (2002 159
13. 'More Twists, Turns and Stumbles in the Jungle: A Further Exploration of Land Use, Land-Use Change and Forestry Decisions within the Kyoto Protocol 13 : 1 RECIEL (2007 341.
14. G8 Leaders' Declaration, Responsible Leadership for a Sustainable Future (8 July 2009), available at 〈 http://www.g8italia2009.it/G8/Home/G8-G8- Layout-locale-1199882116809-Atti.htm 〉.
15. See See also Major Economies Forum on Energy and Climate, Declaration of the Leaders (9 July 2009), available at 〈 http://www.whitehouse.gov/the- press-office/Declaration-of-the-Leaders-the-Major-Economies-Forum-on-Energy-and- Climate/ 〉.
16. International Energy Agency, World Energy Outlook 2009: Climate Change Excerpt (IEA, 2009).
17. See also F. Harvey, 'China "to Lead on Climate Change Curbs" by 2020', Financial Times (20 September 2009).
18. J. Page, 'India Challenges US by Agreeing to Impose Limits on Carbon Emissions', TimesOnLine (18 September 2009), available at 〈 http://www.timesonline.co.uk/tol/news/environment/article6839231.ece 〉.
19. Presidential Committee on Green Growth and the Prime Minister's Office of the Republic of Korea, 'Korean Government Launches the National Consensus-Building Process for Deciding 2020 Midterm GHG Mitigation Target by Announcing Three Mitigation Scenarios', Press Release (18 August 2009), available at 〈 http://www.koreaheute.de/-board8/bbs/board.php?bo-table=kh- ueberuns-whatsnew&wr-id=18 〉.
20. See Environmental Protection Agency, US Climate Policy and Actions (EPA, undated), available at 〈 http://www.epa.gov/climatechange/policy/ 〉.
21. For an overview see also World Resources Institute, US Federal Climate Policy (WRI, undated), available at 〈 http://www.wri.org/project/us- federal-climate-policy 〉.
22. K. Kulovesi et al. UN 2006 Climate Change Conference: A Confidence-Building Step? 7 Climate Policy (2007 255.
23. AWG-LCA 4 Ideas and Proposals on Paragraph 1 of the Bali Action Plan (FCCC/AWGLCA/2008/16/Rev.1, 15 January 2009).
24. AWG-LCA 5 Fulfilment of the Bali Action Plan and Components of the Agreed Outcome: Note by the Chair (FCCC/AWGLCA/2009/4 (Parts I and II), 18 March 2009).
25. AWG-LCA 6 Negotiating Text: Note by the Chair (FCCC/AWGLCA/2009/8, 19 May 2009).
26. AWG-LCA 6 Revised Negotiating Text: Note by the Secretariat (FCCC/AWGLCA/2009/INF.1 and Add.1, 22 June 2009).
27. See AWG-KP 6 Conclusions (FCCC/KP/AWG/2008/8, 4 February 2009).
28. The six month rule requires that proposals for new protocols and amendments to the existing instruments must be communicated to the parties through the Secretariat six months before their adoption.
29. M. Gutiérrez et al. Summary of AWG-LCA 5 and AWG-KP 7 12 : 407 Earth Negotiations Bulletin (10 April 2009).
30. S. Jinnah et al. Tripping Points: Barriers and Bargaining Chips on the Road to Copenhagen 4 : 034003 Environmental Research Letters (2009 1.
31. See UNFCCC, n. 1 above, Article 2.
32. See Bali Action Plan, n. 2 above, para. 1(a).
33. See G8 and MEF Declarations, n. 13 above.
34. 2 have increased from 280 ppm in the middle of the seventeenth century to 385.34 ppm in 2008. See World Resources Institute, EarthTrends: Environmental Information (WRI, 2008).
35. 'Summary for Policymakers', in B. Metz et al. (eds), Climate Change 2007: Mitigation: Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2007), Table TS.2, at 39.
36. Climate Change 2007: Mitigation: Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change Ibid.
37. Ibid., Box 13.7, at 776.
38. M. den Elzen N. Höhne Reductions of Greenhouse Gas Emissions in Annex I and Non-Annex I Countries for Meeting Concentration Stabilization Targets 91 Climatic Change (2008 249
39. J.I. House et al. What Do Recent Advances in Quantifying Climate and Carbon Cycle Uncertainties Mean for Climate Policy 3 : 044002 Environmental Research Letters (2008 1.
40. 2-eq to limit temperature increase to below 2°C. See AWG-LCA, Note on Sources for FCCC/AWGLCA/2009/INF.1 (14 August 2009), at 17-18 and 69, available at 〈 http://unfccc.int/files/kyoto-protocol/application/pdf/ part1rntsources.pdf 〉.
41. The Umbrella Group is a loose coalition of non-EU developed countries which formed following the adoption of the Kyoto Protocol. Although there is no formal list, the Group is usually made up of Australia, Canada, Iceland, Japan, New Zealand, Norway, the Russian Federation, Ukraine and the USA. The Umbrella Group evolved from the JUSSCANNZ group, which was active during the Kyoto Protocol negotiations (JUSSCANNZ is an acronym for Japan, the USA, Switzerland, Canada, Australia, Norway and New Zealand).
42. A. Appleton et al. Summary and Analysis of the Bonn Climate Change Talks 12 : 427 Earth Negotiations Bulletin (17 August 2009 11.
43. Earth Negotiations Bulletin Ibid.
44. These discussions are based on the Kyoto Protocol, n. 3 above, Article 3.9, which indicates that negotiations on Annex I parties' further commitments must be initiated 5 years before the end of the first commitment period. On the establishment and mandate of the AWG-KP, see Decision 1/CMP.1, Consideration of Commitments for Subsequent Periods for Parties included in Annex I of the Convention under Art. 3, Paragraph 9 of the Kyoto Protocol (FCCC/KP/CMP/2005/8/ Add.1, 30 March 2006).
45. See A Compilation of Proposals by Parties for Aggregate and Individual Figures for Annex I Parties (Revised Addendum): Note by the Chair (FCCC/KP/AWG/2009/10/Add.4/Rev.1, 28 August 2009).
46. See n. 15 above.
47. T. Akanle et al. Summary and Analysis of the Bonn Climate Change Talks 12 : 241 Earth Negotiations Bulletin (15 June 2009).
48. UNFCCC Secretariat, Synthesis of Information Relevant for Determining of the Mitigation Potential and Identification of Possible Ranges of Emission Reduction Objectives of Annex I Parties: An Update: Technical Paper (FCCC/TP/2008/10, 7 November 2008), at 4.
49. Synthesis of Information Relevant for Determining of the Mitigation Potential and Identification of Possible Ranges of Emission Reduction Objectives of Annex I Parties: An Update: Technical Paper Ibid.
50. Synthesis of Information Relevant for Determining of the Mitigation Potential and Identification of Possible Ranges of Emission Reduction Objectives of Annex I Parties: An Update: Technical Paper Ibid.
51. Several non-Annex I countries have made proposals for Annex I parties' aggregate emission reductions and some have also submitted proposals for individual countries' targets. See, for instance: Proposal Submitted by China on behalf of 37 Developing Countries for an Amendment to the Kyoto Protocol (FCCC/KP/CMP/2009/7, 15 June 2009);
52. Proposal from the Philippines for Amendments to the Kyoto Protocol (FCCC/KP/CMP/209/5, 12 June 2009);
53. and Proposal from Bolivia on behalf of Malaysia, Paraguay and the Bolivarian Republic of Venezuela for an Amendment to the Kyoto Protocol (FCCC/KP/CMP/2009/12, 17 June 2009).
54. Informal note by the Secretariat: compilation of information relating to possible quantified emission limitation and reduction objectives as submitted by parties (2 November 2009).
55. See Report of the AWG-KP on its Resumed Sixth Session (FCCC/KP/AWG/2008/8, 4 February 2009).
56. AWG-KP 4, 2007 Report of the AWG-KP 4 held at Vienna from 27 to 31 August 2007 (FCCC/KP/AWG/2007/4, 17 September 2007).
57. -2007 Report of the AWG-KP 4 held at Vienna from 27 to 31 August 2007Ibid.
58. See Bali Action Plan, n. 2 above, para. 1(b)(i).
59. Paragraph 63 of the AWG-LCA's negotiating text, n. 21 above, also provides a bracketed option that 'Each Party should decide on a suitable commitment for itself, choosing whether to undertake quantified emission reduction and limitation commitments or nationally appropriate mitigation actions, and whether such commitments or actions will be undertaken voluntarily or in a legally binding context either internationally or domestically'.
60. On the various proposals on 'comparability', see AWG-LCA's revised negotiating text, n. 22 above, paras 56-59 and 65.
61. AWG-LCA's Revised Negotiating Text Ibid.
62. Ibid., para. 59.
63. At COP-3 in Kyoto, the USA agreed to reduce its emissions by 7% from 1990 levels between 2008-2012. However, it did not ratify the Kyoto Protocol and its emissions increased by 17% between 1990 and 2007 (see EPA, Inventory of US Greenhouse Gas Emissions and Sinks: 1990-2007 (EPA, April 2009). The new target proposed by the Obama Administration would thus signify a mid-term reduction of 16-17% from current levels by 2020. For details of the US target, see T. Stern, Special Envoy for Climate Change, Press Briefing of the US Delegation at the UNFCCC Climate Change Talks (29 March 2009), available at 〈 http://www.state.gov/g/oes/rls/remarks/2009/121010.htm 〉.
64. See UNFCCC, n. 1 above, Article 3.
65. Emissions per capita in the USA are around four times those in China. See T. Herzog, World Greenhouse Gas Emissions in 2005 (WRI, 2005).
66. See Bali Plan of Action, n. 2 above, para. 1(b)(ii).
67. See, for example, Draft Implementing Agreement under the Convention Prepared by the US for Adoption at COP 15 (FCCC/CP/2009/7, 6 June 2009), Article 2.3.
68. See, Draft Implementing Agreement under the Convention Prepared by the US for Adoption at COP 15 ibid., Article 2, which provides, inter alia, that 'the levels of ambition expected of Parties will necessarily evolve over time as their respective national circumstances and respective capabilities change' and proposes that when updating commitments, new countries could be expected to undertake similar commitments as developed countries on the basis of 'objective criteria of economic development'.
69. The USA is proposing that both developed countries and such developing countries whose national circumstances reflect greater capability prepare low-carbon strategies for long-term net emission reductions by 2050. For developed countries, the strategy would include a quantified target. See Draft Implementing Agreement, n. 60 above, Articles 2.1(b) and 2.3(b). Australia is proposing that all parties, apart from LDCs, should maintain national schedules and meet and/or implement nationally appropriate mitigation commitments and/or actions identified in the schedules. See Draft Protocol to the Convention Prepared by Australia for Adoption at COP 15 (FCCC/CP/2009/5, 6 June 2009).
70. See Draft Protocol Submitted by Japan for Adoption at COP 15 (FCCC/CP/2009/3, 13 May 2009), Article 3.2(c).
71. See Draft Protocol, n. 62 above. Australia has proposed the use of schedules to register mitigation commitments and actions by both developed and developing countries. According to this proposal, individual national schedules would be attached to, and form an integral part of, the treaty outcome; while developed countries would be expected to register economy-wide QELROs, developing countries could register a variety of mitigation policies and measures, including sectoral mitigation commitments for the more advanced developing countries.
72. See Australia, Schedules in a Post-2012 Treaty: Submission to the AWG-LCA (FCCC/AWGLCA/2009/MISC.4 (Part I), 19 May 2009), at 22-23.
73. On the negotiations leading to the adoption of the relevant part of the Bali Action Plan in Bali, see B. Müller, 'On the Road Again: Impressions from the Thirteenth UN Climate Change Conference', Oxford Environment and Energy Comment (Oxford Institute for Energy Studies, 2008), available at 〈 http://www.oxfordclimatepolicy.org/publications/Bali2007Final.pdf 〉.
74. See, for instance, the Draft Implementing Agreement, n. 60 above, Article 1.3;
75. and the Draft Protocol, n. 62 above, Articles 1(c) and 20. According to Australia, the MRV system would be calibrated according to parties' responsibilities and capabilities.
76. See Bali Action Plan, n. 2 above, para. 1(b)(iii).
77. Note that these estimates have high uncertainty, with an error margin estimated to be more than 30-50%. See 'Summary for Policymakers', n. 30 above, at 104.
78. 2 from land-use change accounts for 12.2% (instead of the 18.2% shown by the same source in 2003) of the share of greenhouse gases. This is a result of revised methodologies used to calculate deforestation in the Forest Resources Assessment (FRA) data, not lower emissions from land-use change (these actually increased 4.1% between 2000 and 2005). See T. Herzog, World Greenhouse Gas Emissions in 2005 (WRI, 2005).
79. The SBSTA has currently on its agenda a programme of work on methodological issues related to a range of policy approaches and positive incentives for REDD.
80. This is the level that serves as a reference from which to start counting reduced or avoided emissions and enhanced forest carbon stocks.
81. 'Offsetting' means that countries reduce greenhouse gas emissions by purchasing carbon credits rather than through domestic action. Under the UNFCCC regime, offsetting is currently possible for Annex I countries under the Kyoto Protocol through emissions trading (Article 17) and through two project-based mechanisms, namely the Clean Development Mechanism (Article 12) and Joint Implementation (Article 6). For details of the discussion on offsetting under the AWG-KP and AWG-LCA, see A. Appleton et al., n. 37 above, at 3-4 and 13.
82. Ibid.,
83. Ibid.,
84. For the various options for COP/MOP decisions on the flexibility mechanisms being considered under the AWG-KP, see Draft Decision on Other Issues Identified in Paragraph 49(c) of Document FCCC/KP/AWG/2008/8: Note by the Chair (Revised Addendum): Documentation to Facilitate Negotiations among Parties (FCCC/KP/AWG/2009/10/Add.3/Rev.1, 28 August 2009).
85. K. Kulovesi The Carbon Market and the Post-2012 Climate Regime: Key Legal Scenarios 3 Carbon and Climate Law Review (2009 277.
86. See A. Appleton et al., n. 37 above. One of the most prominent examples of proposals containing the possibility of trade measures on developing country imports is the American Clean Energy and Security Act of 2009 (commonly known as the 'Waxman-Markey Bill').
87. See 'Technical Summary', in B. Metz et al., n. 30 above.
88. K. Levin, and D. Tirpak, Climate Science 2008: Major New Discoveries (World Resources Institute, 2009).
89. Ban Ki-Moon, 'The Ice Is Melting', New York Times (17 September 2009).
90. International Energy Agency, World Energy Outlook 2008: Executive Summary (IEA, 2008), at 4.
91. World Energy Outlook 2008: Executive Summary Ibid., at 11.
92. See M. Gutiérrez et al., n. 24 above.
93. Some of the proposals made on IPRs include compulsory licensing; patent pooling; preferential/differential pricing; IPR sharing for collaborative research and development; limited time patents; a proposed declaration on IPRs and environmentally sound technologies; and/or extension of exemptions such as exemption of LDCs/vulnerable countries from patent protection for climate-related technologies.
94. For a more detailed discussion, see B.C. Staley et al., Tick Tech Tick Tech: Coming to Agreement on Technology in the Countdown to Copenhagen, WRI Working Paper (June 2004).
95. Two years later, this figure was revised up 170% to reflect higher projected capital costs, especially in the energy sector. See UNFCCC Secretariat, Investment and Financial Flows to Address Climate Change: An Update (FCCC/TP/2008/7, 26 November 2008).
96. The estimate costs for adaptation vary widely and are the subject of controversy. A recent report notes that the real costs of adaptation are likely to be two to three times higher than the estimates presented in the UNFCCC Secretariat's paper. See M. Parry, Assessing the Costs of Adaptation to Climate Change: A Critique of the UNFCCC Estimates (IIED, August 2009).
97. Assessing the Costs of Adaptation to Climate Change: A Critique of the UNFCCC Estimates Ibid.
98. For other estimates, see also E. Haites, Investment and Financial Flows Needed to Address Climate Change (The Climate Group, 2009).
99. AWG-LCA 6 Ideas and Proposals on the Elements Contained in Paragraph 1 of the Bali Action Plan: Submissions from Parties: Addendum (FCCC/AWGLCA/2009/ MISC.4/Add.2, 31 May 2008), at 16-24.
100. AWG-LCA 4 Ideas and Proposals on the Elements Contained in Paragraph 1 of the Bali Action Plan: Submissions from Parties (FCCC/AWGLCA/2008/MISC.5, 27 October 2008), at 94-100.
101. AWG-LCA 3 Ideas and Proposals on the Elements Contained in Paragraph 1 of the Bali Action Plan: Submissions from Parties (FCCC/AWGLCA/2008/MISC.2. 14 August 2008), at 40-45. Mexico's Green Fund would be used to support mitigation and adaptation activities yielding MRV results and all contributions would be subject to a levy but for an adaptation fund and a clean technology fund. According to Mexico, such a fund could mobilize no less than US$10 billion per year in its initial phase. The Major Economies Forum agreed to consider further proposals for the establishment of international funding arrangements, including Mexico's Green Fund.
102. For a more detailed discussion of finance governance, see L. Gomez-Echeverri and B. Müller, Key Issues on Governance of Climate Change Finance, European Capacity Building Initiative Policy Brief (September 2009).
103. In regards to concrete contributions, already on the table is a proposal by the European Commission under which the EU would contribute anywhere from 2-15 billion per year to developing countries as part of its contribution of up to 30% of an international fund that would range from 22-50 billion Under this proposal, the USA would contribute up to 24%, or 12 billion, and the rest, around 38 billion, would come from private-sector funds flowing as part of the international carbon market, for a total of about 100 billion per year by 2020. As the proposal states, '[t]he more the carbon market can provide, the less demand there will be on public finance'. See Europa, Climate Change: Commission Sets Out Global Ginance Blueprint for Ambitious Action by Developing Nations (IP/09/1297, 10 September 2009), available at: 〈 http://europa.eu/rapid/ pressReleasesAction.do?reference=IP/09/1297&format=HTML&aged= 0&language=EN&guiLanguage=en 〉.
104. For detailed analysis, see K. Kulovesi, n. 75 above, 270-279.
105. Ibid.,
106. The Marrakesh Accords adopted by COP-7 and containing the detailed rules for the implementation of the Kyoto Protocol are the prime example See Marrakesh Accords (FCCC/CP/2001/13/add.1, 21 January 2002).
107. For instance, the USA is unlikely to ratify the Kyoto Protocol even in the post-2012 period. Without a legally binding outcome from the AWG-LCA, mitigation commitments by the USA would continue to have a 'softer' legal status than those undertaken by Annex I countries under the Kyoto Protocol.