Differentiation in the emerging climate regime

Theoretical Inquiries in Law

Volumn 14, Issue 1, 2013, Pages 151-171

  Rajamani, Lavanya ^a  

^a CENTRE FOR POLICY RESEARCH   (India)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84882244937     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.1515/til-2013-009     Document Type: Conference Paper

References (50)

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].
2. Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997, 2303 U.N.T.S. 162 [hereinafter Kyoto Protocol].
3. Report of the Conference of the Parties on Its Fifteenth Session, Addendum, Part Two: Action Taken by the Conference of the Parties at Its Fifteenth Session, Decision 2/CP.15: Copenhagen Accord, U.N. Doc. FCCC/CP/2009/11/Add.1 (Mar. 30, 2010) [hereinafter Copenhagen Accord].
4. Report of the Conference of the Parties on Its Sixteenth Session, Addendum, Part Two: Action Taken by the Conference of the Parties at Its Sixteenth Session, 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, U.N. Doc. FCCC/CP/2010/7/Add.1 (Mar. 15, 2011) [hereinafter Cancun Agreements LCA]; Report of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol on Its Sixth Session, Addendum, Part Two: Action Taken by the Conference of the Parties at Its Sixth Session, 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, U.N. Doc. FCCC/KP/CMP/2010/12/Add.1 (Mar. 15, 2011) [hereinafter Cancun Agreements KP].
5. Report of the Conference of the Parties on Its Seventeenth Session, Addendum, Part Two: Action Taken by the Conference of the Parties at Its Seventeenth Session, Decision 1/CP.17: Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, U.N. Doc. FCCC/CP/2011/9/Add.1 (Mar. 15, 2011) [hereinafter Durban Platform].
6. see also Noordwijk Declaration on Atmospheric Pollution and Climatic Change (Nov. 7, 1989), reprinted in 5 Am. U. J. Int'l L. & Pol'y 592 (1990)
7. Hague Declaration on the Environment, 28 I.L.M. 1308 (Mar. 11, 1989).
8. See, e.g., Report of the Conference of Parties on Its First Session, Addendum, Part Two: Action Taken by the Conference of the Parties at Its First Session, Decision 1/CP.1: The Berlin Mandate: Review of Adequacy of Articles 4, Paragraph 2, Sub-Paragraph (a) and (b), of the Convention, Including Proposals Related to a Protocol and Decisions on Follow-Up, U.N. Doc. FCCC/CP/1995/7/Add.1 (June 6, 1995) [hereinafter Berlin Mandate].
9. Report of the Conference of the Parties on Its Thirteenth Session, Addendum, Part Two: Action Taken by the Conference of the Parties at Its Thirteenth Session, Decision 1/CP.13: Bali Action Plan, U.N. Doc. FCCC/CP/2007/6/Add.1 (Mar. 14, 2008) [hereinafter Bali Action Plan].
10. See, e.g., Report of the Conference of the Parties on Its Seventh Session, Addendum, Part Two: Action Taken by the Conference of the Parties at Its Seventh Session, Procedures and Mechanisms Relating to Compliance Under the Kyoto Protocol, U.N. Doc. FCCC/CP/2001/13/Add.3, vol. III (Jan. 21, 2002).
11. George W. Bush, President of the United States, to Senators Hagel, Helms, Craig, and Roberts, The White House, Office of the Press Secretary (Mar. 13, 2001): As you know, I oppose the Kyoto Protocol because it exempts 80 percent of the world, including major population centers such as China and India, from compliance, and would cause serious harm to the U.S. economy. The Senate's vote, 95-0, shows that there is a clear consensus that the Kyoto Protocol is an unfair and ineffective means of addressing global climate change concerns.
12. For further information, see Major Economies Forum on Energy and Climate, http://www.majoreconomiesforum.org/ (last visited June 12, 2012).
13. See Europa, Press Release, Climate Change: Bali Conference Must Launch Negotiations and Fix "Roadmap" for New UN Agreement (Nov. 27, 2007), available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/ 1773&format=HTML&aged=1&language=EN&guiLanguage=en
14. see also Council of the European Union, Press Release, 2826th Council meeting, Climate Change - Council Conclusions 12 (Oct. 30, 2007)
15. Submission by France on Behalf of the European Community and Its Member States 4, 5-6, U.N. Doc. FCCC/AWGLCA/2008/MISC.2 (Aug. 14, 2008).
16. See Submission by Japan 4, 11, U.N. Doc. FCCC/AWGLCA/2008/MISC.1/Add.1 (Mar. 12, 2008).
17. Submission by Australia 2, 5, U.N. Doc. FCCC/KP/AWG/2008/MISC.1/Add.2 (Mar. 20, 2008).
18. Submissions by Japan 3, 11, U.N. Doc. FCCC/AWGLCA/2008/MISC.1/Add.1 (Mar. 12, 2008)
19. Submissions by Turkey 101, 102, U.N. Doc. FCCC/AWGLCA/2008/MISC.5 (Oct. 27, 2008).
20. Submissions by Canada 9, 10, U.N. Doc. FCCC/AWGLCA/2008/MISC.1/Add.2 (Mar. 20, 2008).
21. The G-77 is a group of 131 developing countries that often negotiate with China to form the G-77/China. For further details on the G-77, see About the Group of 77, The Group of 77 at the United Nations, http://www.g77.org/doc/ (last visited Aug. 13, 2012).
22. See Submission by Philippines on Behalf of the G-77/China 48, U.N. Doc. FCCC/AWGLCA/2008/MISC.5/Add.2, pt. II (Dec. 10, 2008).
23. FCCC Secretariat, Notification to Parties, Clarification Relating to the Notification of 18 January 2010 (Jan. 25, 2010), available at http://unfccc.int/files/parties-and-observers/notifications/application/pdf/ 100125-noti-clarification.pdf.
24. See UNEP, The Emissi ons Gap Report (2010), available at http://www.unep.org/publications/ebooks/emissionsgapreport/pdfs/ GAP-REPORT-SUNDAY-SINGLES-LOWRES.pdf.
25. For a full analysis, see Lavanya Rajamani, The Reach and Limits of the Principle of Common but Differentiated Responsibilities and Respective Capabilities in the Climate Change Regime, in Handbook of Climate Change and Indi a: Development, Politics and Governance 118 (Navroz K. Dubash ed., 2011).
26. See, e.g., Ideas and Proposals on the Elements Contained in Paragraph 1 of the Bali Action Plan, Submission by the United States of America 71, U.N. Doc. FCCC/AWGLCA/2008/MISC.5/Add.2, pt. II (Dec. 10, 2008) (noting that "at least some developing countries (such as major emitters and emerging economies) should be taking the same kinds of mitigation actions as developed countries").
27. See Additional Views on Which the Chair May Draw in Preparing Text to Facilitate Negotiations Among Parties, Submission by the United States of America 79, U.N. Doc. FCCC/AWGLCA/2010/MISC.2 (Apr. 30, 2010).
28. BASIC stands for Brazil, South Africa, India and China.
29. Council of the European Union, Preparations for the Seventeenth Session of the Conference of the Parties (COP 17) to the United Nations Framework Convention on Climate Change (UNFCCC) and the Seventh Session of the Meeting of the Parties to the Kyoto Protocol (CMP 7) (Nov. 28-Dec. 9, 2011)
30. Council Conclusions, 3118th Environment Council Meeting 7 (Oct. 10, 2011).
31. see also Statement of Common Position, African Group, Group of Least Developed Countries and ALBA Group (Oct. 7, 2011), available at http://climate-justice.info/wp-content/uploads/2011/11/Statement-of-Common- Positions-Afr-LDC-ALBA-FINAL.pdf. 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 UNFCCC. Conversation with J.M. Mauskar, Special Secretary, Ministry of Environment and Forests, India, and lead climate negotiator, in New Delhi, India (Feb. 24, 2012).
32. Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol, Decision 1/CMP.1: Consideration of Commitments for Subsequent Periods for Parties Included in Annexi to the Convention Under Article 3, Paragraph 9, of the Kyoto Protocol, U.N. Doc. FCCC/KP/CMP/2005/8/Add.1 (Mar. 30, 2006).
33. See Suzanne Goldenberg, Cancun Climate Change Conference: Russia Will not Renew Kyoto Protocol, The Guardi an, Dec. 10, 2010, http://www.guardian.co.uk/ environment/2010/dec/10/cancun-climate-change-conference-kyoto
34. John Vidal, Cancun Climate Change Summit: Japan Refuses to Extend Kyoto Protocol, The Guardi an, Dec. 1, 2010, http://www.guardian.co.uk/environment/ 2010/dec/01/cancun-climate-change-summit-japan-kyoto.
35. Bill Curry & Shawn McCarthy, Canada Formally Abandons Kyoto Protocol on Climate Change, The Globe and Mail, Dec. 12, 2011, http://www. theglobeandmail.com/news/politics/canada-formally-abandons-kyoto-protocol-on- climate-change/article4180809/.
36. Report of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol on Its Seventh Session, Addendum, Part Two: Action Taken by the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol at Its Seventh Session, Decision 1/CMP.7: Outcome of the Work of the Ad Hoc Working Group on Further Commitments for Annexi Parties Under the Kyoto Protocol at Its Sixteenth Session, U.N. Doc. FCCC/KP/CMP/2011/10/Add. 1 (Mar. 12, 2012).
37. See, e.g., Legal Options Paper, Fifth Meeting of the Cartagena Dialogue (July 26-27, 2011) (on file with the author).
38. Contributions to Global Warming: Historic Carbon Dioxide Emissions from Fossil Fuel Combustion, 1900-1999, Earth Trends, Environmental Information, World Resources Institute, http://earthtrends.wri.org/ (last visited Apr. 13, 2012).
39. Draft Protocol to the Convention Prepared by the Government of Japan for Adoption at the Fifteenth Session of the Conference of the Parties, U.N. Doc. FCCC/CP/2009/3 (May 13, 2009).
40. Draft Protocol to the Convention Prepared by the Government of Australia for Adoption at the Fifteenth Session of the Conference of the Parties, U.N. Doc. FCCC/CP/2009/5 (June 6, 2009).
41. Draft Protocol to the Convention Presented by the Government of Tuvalu Under Article 17 of the Convention, U.N. Doc. FCCC/CP/2009/4 (June 5, 2009).
42. Draft Protocol to the Convention Prepared by the Government of Costa Rica for Adoption at the Fifteenth Session of the Conference of the Parties, U.N. Doc. FCCC/CP/2009/6 (June 8, 2009).
43. Proposed Protocol to the Convention Submitted by Grenada for Adoption at the Sixteenth Session of the Conference of the Parties, U.N. Doc. FCCC/CP/2010/3 (June 2, 2010).
44. 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, U.N. Doc. FCCC/CP/2009/7 (June 6, 2009).
45. See, for further analysis, Lavanya Rajamani, The Cancun Climate Change Agreements: Reading the Text, Subtext and Tealeaves, 60 Int'l & Comp. L.Q. 499 (2011).
46. See generally Post-Kyoto Internati onal Climate Policy: Implementi ng Architectu res for Agreement (Joseph E. Aldy & Robert N. Stavins eds., 2010)
47. Steve Rayner, How to Eat an Elephant: A Bottom Up Approach to Climate Policy, 10 Climate Pol'y 615 (2010).
48. Report of the Conference of the Parties on Its Seventeenth Session, Addendum, Part Two: Action Taken by the Conference of the Parties at Its Seventeenth Session, Decision 2/CP.17: Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action Under the Convention, U.N. Doc. FCCC/CP/2011/9/Add.1 (Mar. 15, 2011).
49. See, e.g., John M. Broder, U.S. Envoy Relieved by Climate Talks Outcome, N.Y. Times, Dec. 14, 2011, http://green.blogs.nytimes.com/2011/12/14/u-s- envoyrelieved-by-climate-talks-outcome/.
50. See Ideas and Proposals on the Elements Contained in Paragraph 1 of the Bali Action Plan, Submission by Australia and Norway 4, 7, U.N. Doc. FCCC/AWGLCA/2011/MISC.9 (Sept. 23, 2011).