The durban platform for enhanced action and the future of the climate regime

International and Comparative Law Quarterly

Volumn 61, Issue 2, 2012, Pages 501-518

  Rajamani, Lavanya ^a  

^a CENTRE FOR POLICY RESEARCH   (India)

Author keywords

[No Author keywords available]

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EID: 84862015577     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589312000085     Document Type: Conference Paper

References (68)

1. Seventeenth session of the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC) held at Durban from 28 November to 9 December 2011. Information about the COP and related documents .
2. Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, reprinted in 37 ILM 22 (1998) [hereinafter 'Kyoto Protocol']. 4 The Copenhagen Conference, 2009
3. resulted in a non-binding Copenhagen Accord, Decision 2/ CP.15, 'Copenhagen Accord', in FCCC/CP/2009/11/Add.1 (30 March 2010) [hereinafter 'Copenhagen Accord'].
4. L Rajamani, 'The Making and Unmaking of the Copenhagen Accord' (2010) 59 ICLQ 824.
5. Draft decision -/CP.17, 'Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention', advance unedited version < http://unfccc.int/files/meetings/durban-nov-2011/decisions/application/pdf/ cop17-lcaoutcome.pdf> [hereinafter 'Durban LCA Decision'].
6. The Cancun Agreements 2010, comprise Decision 1/CP.16, 'The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on long-term Cooperative Action under the Convention', in FCCC/CP/2010/7/Add.1 (15 March 2011) [hereinafter 'Cancun Agreements LCA']
7. Decision 1/CMP.6, 'The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its fifteenth session', in FCCC/KP/CMP/2010/12/Add.1 (15 March 2011) [hereinafter 'Cancun Agreements KP'].
8. See for an analysis of the Cancun Agreements, LRajamani, 'The Cancun Climate Change Agreements: Reading the Text, Subtext and Tea Leaves' (2011) 60 ICLQ 499-519.
9. See alsoMGrubb, 'Editorial: Cancun: the Art of the Possible' (2011) 11 Climate Policy 847-50.
10. Draft decision -/CMP.7, 'Outcome of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its sixteenth session', advance unedited version, para 1 [hereinafter 'Durban KP Decision'].
11. Draft decision -/CP.17, 'Establishment of an Ad Hoc Working Group on a Durban Platform for Enhanced Action, 2011', advance unedited version [hereinafter 'The Durban Platform'].
12. See eg on the centrality of equity, Proposals by India for inclusion of additional agenda items in the provisional agenda of the seventeenth session of the Conference of the Parties, Note by the Secretariat, FCCC/CP/2011/INF.2/Add.1 (7 October 2011), Annex.
13. See also Press Release, 'PM Addresses 12th Delhi Sustainable Development Summit', Prime Minister's Office, Press Information Bureau, 2 February 2012
14. Press Release, 'Suo Moto Statement in Lok Sabha by Minister of State for Environment and Forests (I/C) on Durban Agreements', 19 December 2011 .
15. Credible information on actions taken by other countries fosters confidence and generates goodwill, which in turn leads to equitable and effective agreements. See K Raustiala, 'Compliance and Effectiveness in International Regulatory Cooperation' (2000) 32 Case W Res J Int'l L 387
16. M Ehrmann, 'Procedures of Compliance Control in International Environmental Treaties', (2002) 13 Colo J Int'l L 433-434
17. I Hunger and N Isla, 'Confidence-Building Needs Transparency: An Analysis of the BTWC's Confidence-Building Measures', United Nations Institute for Disarmament Research, 2006 .
18. Compilation of economy-wide emission reduction targets to be implemented by Parties included in Annex I to the Convention, Revised note by the secretariat, FCCC/SB/2011/INF.1/ Rev.1 (7 June 2011)
19. Compilation of information on nationally appropriate mitigation actions to be implemented by Parties not included in Annex I to the Convention, Note by the secretariat, FCCC/ AWGLCA/2011/INF.1 (18 March 2011).
20. United Nations Environment Programme, Bridging the Emissions Gap - A UNEP Synthesis Report (United Nations Environment Programme, 2011).
21. Decision 1/CP.13, 'Bali Action Plan', in FCCC/CP/2007/6/Add.1 (14 March 2008) [hereinafter 'Bali Action Plan'].
22. For a detailed analysis of the Bali Action Plan, see L Rajamani, 'From Berlin to Bali and Beyond: Killing Kyoto Softly' (2008) 57 ICLQ 909-39.
23. On the legal status of COP decisions see, J Brunnée, 'COPing with Content, Law-Making under Multilateral Environmental Agreements' (2002) 15 LJIL 1-52.
24. See for an analysis of legal form options, L Rajamani, 'Addressing the Post-Kyoto Stress Disorder' (2009) 58 ICLQ 803-34
25. D Bodansky, White Paper: Legal Form of a New Climate Agreement: Avenues and Options (Pew Center on Global Climate Change, Washington, April 2009).
26. The AWG-LCA's mandate was renewed twice in successive COPs. See para 143-5, Cancun Agreements LCA, and Decision 1/CP. 15, 'Outcome of the work of the Ad HocWorking Group on Long-term Cooperative Action under the Convention', in FCCC/CP/2009/11/Add.1 (30 March 2010), para 2.
27. Draft protocol to the Convention prepared by the Government of Japan for adoption at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/3 (13 May 2009).
28. Draft protocol to the Convention prepared by the Government of Australia for adoption at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/5 (6 June 2009).
29. Draft protocol to the Convention presented by the Government of Tuvalu under Article 17 of the Convention, FCCC/CP/2009/4 (5 June 2009).
30. Draft protocol to the Convention prepared by the Government of Costa Rica for adoption at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/6 (8 June 2009).
31. Proposed protocol to the Convention submitted by Grenada for adoption at the sixteenth session of the Conference of the Parties, FCCC/CP/2010/3 (2 June 2010).
32. Draft implementing agreement under the Convention prepared by the Government of the United States of America for adoption at the fifteenth session of the Conference of the Parties, Note by the secretariat, FCCC/CP/2009/7 (6 June 2009).
33. See 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', in FCCC/KP/CMP/2005/8/Add.1 (30 March 2006).
34. Russia and Japan have formally indicated their intention not to assume targets under the Kyoto Protocol's second commitment period. See Letter to Ms C Figueres, Executive Secretary of the UNFCC, from the Head of Roshydromet, National Climate Change Coordinator, The Russian Federation, 8 December 2010
35. Letter to Ms C Figueres, Executive Secretary of the UNFCC, from the Japanese Ambassador for COP16 of the UNFCCC, 10 December 2010
36. Canada has formally withdrawn from the Kyoto Protocol. See Canada: Withdrawal, Kyoto Protocol to the United Nations Framework Convention on Climate Change, C.N.796.2011.TREATIES-1 (Depositary Notification), 16 December 2011, .
37. Council of the European Union, Preparations for the 17th session of the Conference of the Parties (COP 17) to the United Nations Framework Convention on Climate Change (UNFCCC) and the 7th session of the Meeting of the Parties to the Kyoto Protocol (CMP 7) (Durban, South Africa 28 November - 9 December 2011), Council Conclusions, 3118th Environment Council meeting, Luxembourg, 10 October 2011 . 27 Art 3(9), Kyoto Protocol.
38. For information on the Fifth Assessment Report, see .
39. See eg Experts from BASIC countries, Equitable access to sustainable Development, Contribution to the Body of Scientific Knowledge - A Paper by Experts from BASIC Countries (2011) 4-21 .
40. 2 emissions constituted the highest share-24.01%-of the world's emissions. See data for Yearly Emissions for countries, Climate Analysis Indicators Tool (CAIT), World Resources Institute .
41. See eg Algeria on behalf of the African Group in Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan, Submissions from Parties, FCCC/AWGLCA/ 2009/MISC.4 (Part I) (19 May 2009)
42. See also, Statement of Common Position, African Group, Group of Least Developed Countries and ALBA Group, 7 October 2011 . It is worth noting that although this distinction between commitments and actions came to be characterized as a 'firewall' after Bali, many developing countries source such a firewall to the FCCC. In conversation, JM Mauskar, Special Secretary, Ministry of Environment and Forests, India, and lead climate negotiator.
43. Report of the Ad Hoc Group on the Berlin Mandate on the Work of its Third Session, held at Geneva from 5 to 8 March 1996, FCCC/AGBM/1996/5 (23 April 1996)
44. Ad Hoc Group on the Berlin Mandate, Possible Features of a Protocol or Another Legal Instrument, Institutional issues, Note by the secretariat, FCCC/AGBM/1996/4 (13 February 1996).
45. See, J Vidal and F Harvey, 'Durban climate deal struck after tense all-night session', The Guardian (11 December 2011)
46. M McCarthy, '11th-hour agreement in Durban sees Big Three legally bound to reduce carbon emissions' The Independent (12 December 2011).
47. Images of the 'huddle' and its participants .
48. See, eg Submission of Australia, in Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan, Submissions from Parties, Addendum, Part I, FCCC/ AWGLCA/2008/Misc.5/Add.2 (Part I) (10 December 2008), 73
49. Submission of Japan, in 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), 41
50. See generally for a discussion of these, I Van Damme, Treaty Interpretation by the WTO Appellate Body (OUP, Oxford, 2009)
51. G Letsas, 'Strasbourg's Interpretive Ethic: Lessons for the International Lawyer' (2010) 21 EJIL 509-41.
52. See, eg Todd Stern, the US Climate Change Envoy commented after Durban, '[f] undamentally, we got the kind of symmetry we have been focused on since the beginning of the Obama administration.' See L Friedman and J Chemnick, 'Durban talks create ''platform'' for new climate treaty that could include all nations', ClimateWire, 12 December 2011.
53. See also, Reaction of Connie Hedegaard, EU climate commissioner, after Durban: 'The big thing is that now all big economies, all parties have to commit in the future in a legal way and that's what we came here for' in 'Reaction to UN climate deal', BBC News Science and Environment, 11 December 2011
54. P Ghosh and C Dasgupta, 'Smoke and Mirrors' Financial Express (14 December 2011)
55. For a detailed analysis see L Rajamani, 'The Reach and Limits of the Principle of Common but Differentiated Responsibilities and Respective Capabilities in the Climate Change Regime', in NK Dubash, (ed) Handbook of Climate Change and India: Development, Politics and Governance (OUP, New Delhi, 2011) 118-129.
56. See also P Birnie, A Boyle and C Redgwell, International Law and the Environment (3rd edn, OUP, Oxford, 2009) 132-7.
57. 'China sets conditions on binding climate change commitment after 2020' Xinhuanet News (6 December 2011)
58. M Hart, 'Reading China's Climate Change Tea Leaves', Centre for American Progress (8 December 2011)
59. A Hsu, 'Propelling the Durban climate talks - China announces willingness to consider legally binding commitments post-2020', ChinaFAQs, The Network for Climate and Energy Information, 6 December 2011 .
60. See text of a letter from George W Bush, the President of the United States, to Senators Hagel, Helms, Craig and Roberts (13 March 2001). Para 3, The Durban Platform.
61. Joint Statement issued at the Conclusion of the 10th BASIC Ministerial meeting on Climate Change, New Delhi, 13-14 February 2012 .
62. See generally for a discussion on facilitating compliance, C Redgwell, 'Facilitation of Compliance', in J Brunnée, M Doelle and L Rajamani (eds), Promoting Compliance in An Evolving Climate Regime (CUP, Cambridge, 2011) 177-93.
63. Draft decision -/CP.17, 'Green Climate Fund - report of the Transitional Committee', advanced unedited version . 106 Para 102, Cancun Agreements LCA.
64. Germany has pledged E40 million, see Statement of the German Federal Minister of the Environment, Nature Conservation and Nuclear Safety Dr. Norbert Röttgen, High Level Segment of the UNFCCC 2011 COP 17 and CMP 7, Durban (07 December 2011)
65. Denmark has pledged nearly E15m, see 'Money starts trickling into Green Climate Fund', ACT Alliance (8 December 2011) .
66. See eg B Müller, N Höhne and C Ellermann, 'Differentiating (Historic) Responsibilities for Climate Change' (2009) 9 Climate Policy 593-611.
67. Summary of the Third Session of the Ad Hoc Working Group under the Convention and Sixth Session (Part one) of the Ad Hoc Working Group under the Kyoto Protocol: 21-7 August 2008, (2008) 12(383) Earth Negotiations Bulletin 1, 4 .
68. S Kartha and P Erickson, Comparison of Annex 1 and non-Annex 1 pledges under the Cancun Agreements (Stockholm Environment Institute, June 2011).