Chapter 6 BEYOND 2012: BUILDING THE POST-KYOTO CLIMATE REGIME

Transcription

1 Chapter 6 BEYOND 2012: BUILDING THE POST-KYOTO CLIMATE REGIME SYNOPSIS I. Introduction II. The Road to Bali A. The Views of the Parties 1. The European Union and Other Annex I Parties 2. The United States and the Major Emitters Process 3. The G8 4. Developing Countries B. The Bali Action Plan III. Building a New Climate Change Regime: From Copenhagen to Durban A. The Road to Copenhagen 1. The Commitment Goal 2. Which Countries Will Be Subject to Commitments? 3. Options for Mitigation Commitments a. Intensity Targets b. Policies and Measures B. The Copenhagen Accord C. The Cancun Agreements and the Durban Package 1. Shared Vision 2. Mitigation in the UNFCCC Track 3. Mitigation in the Kyoto Protocol Track 4. Adaptation 5. Technology Transfer 6. Finance 7. Loss and Damage D. The Durban Platform 1. Legal Form 2. Towards New Mitigation Commitments: CBDR and Equity a. CBDR, Equity, and the Views of Some Parties b. Operationalizing CBDR and Equity I. INTRODUCTION The future of international cooperation to mitigate climate change is at a critical and uncertain juncture. Since the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) issued in early 2007, the existing scientific consensus has further strengthened that anthropogenic greenhouse gas (GHG) emissions are causing global temperatures to rise. Moreover, the International Energy Agency has reported that, if carbon dioxide (CO 2 ) concentrations are to be kept below 450 parts per million, 80 percent of the 1

2 cumulative CO 2 that may be emitted worldwide between 2009 and 2035 is already locked-in by existing infrastructure or infrastructure currently being built. International Energy Agency, World Energy Outlook 2011 Factsheet 2 (2011). Unless internationally coordinated action is taken by 2017, all new infrastructure from then until 2035 would need to be zero-carbon, unless emitting infrastructure is retired before the end of its economic lifetime to make headroom for new investment. Id. At the same time that the window to act is closing, the Kyoto Protocol s first compliance period is ending. This provides governments with both opportunities and challenges. The opportunity, of course, is to build a post-2012 climate regime capable of avoiding the worst impacts of climate change while also ensuring that funding and institutional structures are available to address the impacts of climate change impacts that will happen regardless of the Parties mitigation commitments adopted for the post-2012 regime. The challenges are also apparent. Governments have entered negotiations for a post-2012 climate regime with enormous differences about how to address climate change and even who should address it. The United States and other developed countries believe that major emitting developing countries must join developed countries in mitigating their GHG emissions. GHG emissions from middle-income developing countries, particularly China, have grown at much faster rates than expected when the Kyoto Protocol was negotiated. Most developing countries vigorously oppose binding commitments for developing countries until the United States and other developed countries truly take the lead in combating climate change and its adverse effects. Pacific Small Island Developing States, already reeling from the effects of rising seas, surging tides, drought and other climate change impacts, desperately want aggressive mitigation from all countries. The primary framework for negotiating the post-kyoto climate regime began with the Bali Action Plan, which the UNFCCC Parties adopted in December The Action Plan put the world on a schedule to agree to a post-kyoto regime by the end of The Action Plan also reflected important concessions by many of the Parties in framing the negotiations, but it still left unresolved the most important issues threatening the success of future negotiations. First, although the Action Plan called for developed countries to make measurable reductions in greenhouse gases, it left countries to determine in future negotiations what those new commitments might be. Second, although the Bali Action Plan committed developing countries to adopt nationally appropriate mitigation actions, it did not clarify what the nature of those mitigation actions might be. The Bali Action Plan did not lead to a new post-kyoto regime in 2009, but yielded the divisive Copenhagen Accord, an agreement reached by the major emitting economies with little or no participation from other Parties. As a consequence, the UNFCCC Parties never adopted the Copenhagen Accord. Yet its principal provisions a bottom-up approach to mitigation in which Parties submit pledges to reduce GHG emissions and billions in new finance for mitigation and adaptation for the developing world became the basis for the Cancun Agreements in 2010, which the UNFCCC Parties did adopt. The Parties made specific pledges to reduce GHG emissions in the Cancun Agreements but left many of the institutional structures for adaptation, technology transfer, and finance unfinished. Negotiations in Durban in 2011 and Doha in

3 formalized the institutional structures for a post-kyoto regime and also established a new deadline for countries to make additional mitigation pledges to take effect in As you read the materials concerning the ongoing negotiations, consider the following facts as they may help shape your view concerning how the negotiations are progressing: Aggregate annual GHG emissions of developing countries now exceed developed country emissions. Is the success of any future climate regime dependent on meaningful commitments from developing countries? Historical emissions by industrialized countries, and thus their contribution to current climate change, far exceed those of developing countries. Annex I countries accounted for 72 percent of total cumulative global CO 2 emissions from 1850 to China s annual emissions now exceed those of the United States. However, the average American emits about three times more carbon than the average Chinese and ten times more than the average Indian. GHG emissions from the developing world are rapidly increasing: developing country CO 2 emissions now account for 54 percent of total CO 2 emissions. Sixteen countries account for approximately 80 percent of the world s GHG emissions. This chapter explores the politics shaping the Bali Action Plan and the post-kyoto climate negotiations. It then discusses a wide range of options for thinking about the post-kyoto future. As you read the materials, it may help to keep in mind that the Parties have met annually as the CoP and CoP/MoP in the following places: Bali in 2007; Poznan, Poland in 2008; Copenhagen in 2009; Cancun in 2010; Durban in 2011; and Doha in These meetings produced the following significant documents: the Bali Action Plan, the Copenhagen Accord, the Cancun Agreements, the Durban Package (including the Durban Platform), and the Doha Climate Gateway. Keeping track of the meeting places and documents can be tricky, but you should try to do so, because these different documents are important in shaping the post-kyoto future. As you read the materials that follow, consider what that future should be. Is it a future only of Kyoto-like targets and timetables or is it one that focuses on transforming specific economic sectors, such as requirements to use renewable energy sources for generating electricity? In the context of equity and common but differentiated responsibilities, should developing countries have obligations different from those of developed countries? Should island States or poor African countries have different obligations than China? II. THE ROAD TO BALI Negotiators under the climate change regime agreed in May 2006 that there should be no gap between the end of the Kyoto Protocol s first commitment period in 2012 and the beginning of a new commitment period and that the Annex I countries will adopt further mandatory 3

4 reductions after The Parties also committed to establishing a framework at their meeting in Bali, Indonesia in December As the meeting approached, it was not at all clear that an agreement would be reached. Prior to the meeting, Europe proposed that all developed countries commit to substantial cuts in Bali. The United States initially refused to commit to any negotiations under the Kyoto Protocol (to which it was not a Party) and any binding commitments, at least until major developing countries did. At the same time, the United States hoped to open up an alternative negotiation with the large developing countries that focused on voluntary commitments and technology cooperation. Meanwhile, major developing countries such as China and India remained deeply reluctant to commit to GHG reductions or other commitments, especially if developed countries refused to do so. These divisions posed substantial challenges to establishing even a framework for negotiating a post-kyoto Protocol agreement, much less an actual agreement. A. The Views of the Parties 1. The European Union and Other Annex I Parties Having committed through the Kyoto Protocol and European Trading System to the establishment and maintenance of a carbon market, the European Union (EU) not surprisingly committed to a post-kyoto regime that included the basic institutional structure of targets and timetables and flexibility mechanisms found in the Kyoto Protocol. In March 2005, the EU s Council of Ministers, comprising the environment ministers of the member States, created a stir by suggesting ambitious GHG reduction targets for the post-kyoto process (15 30 percent by 2020 and percent by 2050). EU leaders backpedaled from this Council proposal, ultimately announcing an agreement calling for 20 percent reductions by 2020 if there is no post- Kyoto Protocol accord and 30 percent if there is; the EU made no proposals beyond The 2020 target is binding on all 27 EU member States and was designed both to set a benchmark and provide an incentive for other Parties to join in the post-kyoto process. Other non-eu industrialized also weighed in. Australia, which had for many years been the United States strongest ally in opposing the Kyoto Protocol, flipped its position (in light of a change of governments), ratified the Kyoto Protocol just days before the Bali meeting, and dramatically promised a 60 percent reduction in GHGs by 2050 from 1990 levels. Japan made no dramatic announcements but took steps to ensure its compliance with its Kyoto Protocol obligations. Less constructively, Canada announced that it had no intention of complying with the Kyoto Protocol, and by implication, not participating in a second commitment period under the Kyoto Protocol. 2. The United States and the Major Emitters Process Given its repudiation of the Kyoto Protocol, the United States remained outside the mainstream of international climate negotiations as long as those negotiations remained focused on expanding the Kyoto Protocol s targets and timetables into a second commitment period. The Bush Administration was heavily criticized not only for repudiating the Protocol, but also for offering no alternative other than some relatively minor support for technology cooperation. 4

5 The United States finally responded by proposing an alternative forum, the Major Emitters Process, through which it sought broader participation of developing countries. This process has gained traction and now includes the 16 largest GHG emitters (Australia, Brazil, Canada, China, France, Germany, India, Indonesia, Italy, Japan, South Korea, Mexico, Russia, South Africa, the United Kingdom, and the United States). These 16 countries account for approximately 80 percent of the world s GHG emissions. PRESIDENT BUSH DISCUSSES UNITED STATES INTERNATIONAL DEVELOPMENT AGENDA (May 31, 2007) [M]y proposal is this: By the end of next year [2008], America and other nations will set a long-term global goal for reducing greenhouse gases. To help develop this goal, the United States will convene a series of meetings of nations that produce most greenhouse gas emissions, including nations with rapidly growing economies like India and China. In addition to this long-term global goal, each country would establish midterm national targets, and programs that reflect their own mix of energy sources and future energy needs. Over the course of the next 18 months, our nations would bring together industry leaders from different sectors of our economies, such as power generation and alternative fuels and transportation. These leaders will form working groups that will cooperate on ways to share clean energy technology and best practices. It s important to ensure that we get results, and so we will create a strong and transparent system for measuring each country s performance. This new framework would help our nations fulfill our responsibilities under the U.N. Framework Convention on Climate Change. The United States will work with all nations that are part of this convention to adapt to the impacts of climate change, gain access to clean and more energy-efficient technologies, and promote sustainable forestry and agriculture. * * * We re also going to work to conclude talks with other nations on eliminating tariffs and other barriers to clean energy technologies and services by the end of year. If you are truly committed to helping the environment, nations need to get rid of their tariffs, need to get rid of those barriers that prevent new technologies from coming into their countries. We ll help the world s poorest nations reduce emissions by giving them government-developed technologies at low cost, or in some case, no cost at all. While President Bush said that the largest emitters of greenhouse gases should all set goals for reducing GHG emissions, he did not specify what those goals should be but he did not intend them to be binding. Under the President s proposal, countries could choose their own strategies for meeting their goals, and they would not be required to meet mandatory targets for limiting GHG emissions. President Bush also proposed an international fund to help developing countries benefit from clean energy technology. Regardless of whether the major emitters process was intended in part to shift the discussion away from a Kyoto-like agreement, the process and the 5

6 main elements of President Bush s plan have been incorporated into the broader negotiations. Also, when President Obama took office in 2009, he embraced the major emitters process as an alternative forum to the UNFCCC, although the process was renamed the Major Economies Forum. 3. The G8 The major industrial democracies have met annually since 1975 to address major economic and political issues facing their domestic societies as well as the international community. Starting with a group of six countries (France, the United States, Britain, Germany, Japan and Italy), these meetings now also include Canada and Russia, with the European Union also represented. Acknowledging that climate change could seriously damage our natural environment and the global economy, this group of countries, known as the G8, has addressed climate change in many of its recent meetings. Like the major emitters process identified above, the G8 presents an alternative forum for building consensus among industrialized countries to address climate change. In 2007, the G8 made the following proposal for climate change action. These commitments are not legally binding, but they are important politically as they can signal the direction of future negotiations. As you read this excerpt, consider both the compromise language meant to bridge the EU-U.S. gap and the specific signals being sent to China, India, and other large developing countries. G8, GROWTH AND RESPONSIBILITY IN THE WORLD ECONOMY Summit Declaration (June 7, 2007) 50. As climate change is a global problem, the response to it needs to be international. We welcome the wide range of existing activities both in industrialised and developing countries. We share a long-term vision and agree on the need for frameworks that will accelerate action over the next decade. Complementary national, regional and global policy frameworks that coordinate rather than compete with each other will strengthen the effectiveness of the measures. Such frameworks must address not only climate change but also energy security, economic growth, and sustainable development objectives in an integrated approach. They will provide important orientation for the necessary future investment decisions. 51. We stress that further action should be based on the UNFCCC principle of common but differentiated responsibilities and respective capabilities. We reaffirm, as G8 leaders, our responsibility to act. We acknowledge the continuing leadership role that developed economies have to play in any future climate change efforts to reduce global emissions, so that all countries undertake effective climate commitments tailored to their particular situations. We recognise however, that the efforts of developed economies will not be sufficient and that new approaches for contributions by other countries are needed. Against this background, we invite notably the emerging economies to address the increase in their emissions by reducing the carbon intensity of their economic development. Action of emerging economies could take several forms, such as sustainable development policies and measures, an improved and strengthened clean development mechanism, the setting up of plans for the sectors that generate most pollution so as to reduce their greenhouse gas emissions compared with a business as usual scenario. 6

7 53. To address the urgent challenge of climate change, it is vital that major economies that use the most energy and generate the majority of greenhouse gas emissions agree on a detailed contribution for a new global framework by the end of 2008 which would contribute to a global agreement under the UNFCCC by We therefore reiterate the need to engage major emitting economies on how best to address the challenge of climate change.... This major emitters process should include, inter alia, national, regional and international policies, targets and plans, in line with national circumstances, an ambitious work program within the UNFCCC, and the development and deployment of climate-friendly technology. This dialogue will support the UN climate process and report back to the UNFCCC. 54. Technology is a key to mastering climate change as well as enhancing energy security. We have urgently to develop, deploy and foster the use of sustainable, less carbon intensive, clean energy and climate-friendly technologies in all areas of energy production and use. We have to develop and create supportive market conditions for accelerating commercialisation of new less carbon intensive, clean-energy and climate-friendly technologies. Furthermore, to ensure sustainable investment decisions worldwide, we need an expanded approach to collaboratively accelerate the widespread adoption of clean-energy and climate-friendly technologies in emerging and developing economies Private sector investment is and will remain the primary means of technology deployment and diffusion. Strong economies and a wide range of policy instruments are required to develop, deploy and foster climate-friendly technologies. Market mechanisms, such as emissions-trading within and between countries, tax incentives, performance-based regulation, fees or taxes, and consumer labelling can provide pricing signals and have the potential to deliver economic incentives to the private sector. Fostering the use of clean technologies, setting up emissionstrading systems and, as many of us are doing, linking them are complementary and mutually reinforcing approaches. 4. Developing Countries Both the UNFCCC and the Kyoto Protocol are premised on the notion of common but differentiated responsibilities. For that reason, the UNFCCC and Kyoto Protocol impose obligations on developed countries that are not imposed on developing countries. Developed countries agreed to take the lead due to their much greater contribution to climate change, higher per capita GHG emissions, and more abundant financial and technological resources to mitigate climate change. For these reasons, the G77 and China have outlined the two general elements of their position: climate change must be addressed on the basis of equity, common but differentiated responsibilities and respective capabilities and include major and significant reductions in greenhouse gas emissions by all Annex I countries. As the following excerpt makes clear, however, the position of the developing countries goes further than simply calling for deep cuts by developed countries. 7

8 STATEMENT BY H. E. MUKHDOOM SYED FAISAL SALEH HAYAT ON BEHALF OF THE GROUP OF 77 AND CHINA (New York, 24 September 2007) 8. In elaborating a global strategy to address climate change, we must continue to adhere to the Rio principles and in particular the Principle of Common but Differentiated Responsibility. This central principle must be given tangible content. We would like to highlight that effective mitigation efforts are essential to address the challenges posed by climate change. Developed countries must continue to take the lead, as they have committed to, in combating climate change and the adverse effects thereof including through significantly reducing GHG emissions. 9. The developed countries also have an obligation to support the developing countries to adapt an environment-friendly path to development and growth by providing additional and substantial financial and technological assistance. Clearly, the challenge of sustaining economic development and achieving social development and ensuring environmental protection is too overwhelming and beyond the capacity of the developing countries to address on their own. It can only be effectively addressed through international cooperation as well as a partnership with the developed countries, premised on the principle of common but differentiated responsibilities Developed countries should support and assist the efforts of developing countries to adapt to climate change and the response measures designed to address climate change. 11. We strongly believe that no adaptation plan or strategy would be effective without enhanced financing and greater technological support and access for developing countries. 12. Enabling the developing countries to respond to climate change will require substantial additional official assistance, over and above the long standing 0.7 ODA target as well as the ODA target for LDCs. In this context, the recent negative trend in ODA levels is highly regrettable. [eds. note: In 1970, donor governments committed to providing 0.7 percent of their Gross National Income to Official Development Assistance (ODA) to developing countries and more than twice that to the least developed countries (LDCs)]. 13. Similarly, technology is essential to address the climate change challenge. The present restraint on access to advanced technologies, imposed particularly by the IPR [intellectual property rights] regime, need to be lifted, at least for technologies that can assist in meeting the climate change challenge. The developing countries must also be helped, on affordable preferential and concessional terms, through technology transfer, directed R&D and other assistance, to acquire and build capacity for the application of technologies to meet sustainable development targets and goals. 14. The Group of 77 and China would also like to emphasize the urgent need for building the resilience of communities and nations to natural disasters, including those related to Climate Change, and establishing early warning systems in order to prevent and reduce the adverse impacts of such events. * * * 8

9 17. Equally important is to work towards strengthening North-South, South-South and triangular cooperation in research, development and demonstration (RD&D) and to undertake initiatives towards mitigation and adaptation to climate change and its adverse impacts. QUESTIONS AND DISCUSSION 1. The EU. As noted above, the EU member States agreed to increase its GHG reductions from 20 percent to 30 percent if there is a broader international agreement. What impact do you think the EU proposal might have on the post-kyoto negotiations? In light of the clear scientific need to reduce emissions significantly, how can the EU justify its proposal to condition its own reductions on other countries behavior? The EU also established a binding target for renewable energy, requiring that 20 percent of the EU s energy needs be met by renewable sources by Some observers believe this could potentially open another possible negotiating avenue with the United States and developing countries, namely to agree to binding sector-specific policies and measures rather than overall emission caps. What advantages might there be for the United States or developing countries to emphasize such policies and measures as opposed to targets and timetables? 2. Major Economies Forum. President Bush s Major Emitters Process emphasized the need for vast improvements in technology. In his speech excerpted above, he noted that the United States has taken the lead in spending on clean technologies, including safe nuclear power, clean coal technologies, biofuels, and alternative power for automobiles, such as hydrogen cells. How did the President propose to promote the development of technologies? How can international cooperation enhance the development and dissemination of climate-friendly technologies? The Major Economies Forum, as this process is now called, has become a significant negotiating forum, even if it has yet to produce any results. Is this process a distraction from the main international negotiations or does it complement those efforts? What do you think the United States hopes to achieve in the Major Economies Forum that it cannot achieve in negotiations involving all Parties to the climate change regime? Why would Europe agree to participate? To some extent, Europe views the Major Economies Forum as just another contact group for advancing negotiations that will ultimately have to be incorporated into the UNFCCC/Kyoto process. 3. President Bush s insistent call for greater participation by a broader range of countries has gained traction. However, the United States cannot take all of the credit for raising questions of developing country participation in the climate regime. Indeed, the Bush Administration s criticism of the Kyoto Protocol for not including developing countries was viewed by many as a convenient smokescreen for U.S. repudiation of its commitments. Moreover, the whole approach established under the UNFCCC and the principle of common but differentiated responsibilities presumes that at some point developing countries will also make mitigation commitments. All Parties to the Kyoto Protocol, including developing country Parties, knew that at some point 9

10 either in the second or subsequent commitment periods developing countries would be expected to take on binding commitments. The theory was that developing countries would be more likely to do so if industrialized countries had already taken the lead to reduce their GHG emissions. In this regard, how different do you think current negotiations with China, India, and other large developing countries would be if the United States had joined Europe in striving to cut emissions under the Kyoto Protocol during the past decade? Would this have increased or decreased pressure on developing countries? 4. The G8 Statement. Although the majority of G8 members are European, the G8 position on climate change is substantially different from the European Union s approach. Clearly, the United States and Japan have influenced the G8 s position. For example, the G8 declaration does not include a call to reduce greenhouse gas emissions by a fixed amount. Do you think the European members of the G8 have moved the United States toward a more progressive position on climate change? If you were a representative of a large developing country, how would you interpret the G8 statement? Have the G8 countries made concessions? What are the major points of potential consensus? What is the G8 asking from the large developing countries? 5. Like the G8, the G77 and China has broadened the debate about future commitments beyond reductions in GHG emissions. In what ways do the positions of the G8 and the G77 and China overlap? In what ways do the positions differ? Do you think the commonalities are sufficient to form the basis of a deal? 6. The position of the G77 and China calls for much greater technological and financial assistance as well as participation in research development, and demonstration of new initiatives towards mitigation and adaptation. In so doing, the G77 and China appears to be conditioning their acceptance of commitments on extensive infusions of funding for a broad range of activities at the nexus of climate change and sustainable development. Is that reasonable? Thomas Heller and P.R. Shukla believe it is: Climate is not an arcane or peripheral question for development. Both concern fundamental issues of energy, transport, land use, and food security that are priorities for developing countries. Development and climate intersect across two broad dimensions. First, the localized impacts of climate change including water shortages, agricultural disruption, and coastal flooding pose serious long-term threats to development. These impacts will be felt disproportionately in developing countries. At the same time, development is itself the driving force behind climate change. In the long run, achieving the deep reductions in global emissions necessary to stabilize the climate will require fundamental shifts in development pathways. Thomas C. Heller & P.R. Shukla, Development and Climate: Engaging Developing Countries, in BEYOND KYOTO: ADVANCING THE INTERNATIONAL EFFORT AGAINST CLIMATE CHANGE 111 (Pew Center on Global Climate Change 2003). To what extent, if at all, should the international climate treaty relate to development goals instead of focusing on emissions reductions? To what extent should developed countries be responsible for financing development that is consistent with climate change mitigation? 10

11 7. As might be expected, the developing countries do not always speak with one voice. Small Island Developing States (SIDS), most of which are part of the G77 and China, clearly have different interests than China. The SIDS have, for example, called for stronger climate commitments from all major emitters. African Parties frequently negotiate as the Africa Group, which includes many least developed countries (LDCs). The LDCs have formed their own negotiating bloc. Heavily forested countries, such as Brazil and Indonesia, also have their own priorities and approaches to the negotiations. Yet, Brazil has coordinated negotiating positions as part of the BASIC countries Brazil, South Africa, India, and China as well as the BRIC countries Brazil, India, Russia, and China. Because of these overlapping alliances, advocates must always be aware of which alliance a government is speaking on behalf of. B. The Bali Action Plan In December 2007, more than 10,000 governmental representatives and observers from intergovernmental and nongovernmental organizations from 187 countries met in Bali, Indonesia, to negotiate a roadmap for a future international agreement on climate change. The rollercoaster negotiations had a suspense movie atmosphere to them. The negotiations nearly collapsed on several occasions and needed to be extended. Then, just as agreement was within reach, at least among current Kyoto Protocol Parties, developing countries asked for additional technological help from developed nations. U.N. Secretary-General Ban Ki-moon flew back to the negotiations to make an unscheduled last-minute appeal for a deal. In his impassioned speech, he pleaded with governments to seize the moment, this moment, for the good of all humanity and to overcome their differences. India and others then suggested minor adjustments to the text, supported by the European Union, that encouraged monitoring of technological transfer to ensure that developed countries meet the needs of developing countries. With the international community ready to adopt the proposal, known as the Bali Action Plan, the United States voiced its rejection and called for additional talks. The U.S. statement drew loud boos and sharp floor rebukes, a rarity in the formal world of international diplomacy. Finally, the delegate from Papua New Guinea took the floor and said, speaking to the United States, If you are not willing to lead, then get out of the way! Less than an hour later, the United States dramatically reversed its position and accepted the Bali Action Plan, with the changes requested by developing countries. That reversal then brought cheers from governments and observers. In the final agreement, governments agreed to reach a new agreement on climate change by the end of The resulting Bali Action Plan, however, is just that, an agreement to agree and a broad plan for the negotiations. Nonetheless, the Bali Action Plan is a crucial document that set the parameters and goals for the negotiations. The Conference of the Parties, UNFCCC, DECISION 1/CP.13 Bali Action Plan 11

12 Resolving to urgently enhance implementation of the Convention in order to achieve its ultimate objective in full accordance with its principles and commitments, Reaffirming that economic and social development and poverty eradication are global priorities, Responding to the findings of the Fourth Assessment Report of the Intergovernmental Panel on Climate Change that warming of the climate system is unequivocal, and that delay in reducing emissions significantly constrains opportunities to achieve lower stabilization levels and increases the risk of more severe climate change impacts, Recognizing that deep cuts in global emissions will be required to achieve the ultimate objective of the Convention and emphasizing the urgency to address climate change as indicated in the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, 1. Decides to launch a comprehensive process to enable the full, effective and sustained implementation of the Convention through long-term cooperative action, now, up to and beyond 2012, in order to reach an agreed outcome and adopt a decision at its fifteenth session, by addressing, inter alia: (a) A shared vision for long-term cooperative action, including a long-term global goal for emission reductions, to achieve the ultimate objective of the Convention, in accordance with the provisions and principles of the Convention, in particular the principle of common but differentiated responsibilities and respective capabilities, and taking into account social and economic conditions and other relevant factors; (b) Enhanced national/international action on mitigation of climate change, including, inter alia, consideration of: (i) Measurable, reportable and verifiable nationally appropriate mitigation commitments or actions, including quantified emission limitation and reduction objectives, by all developed country Parties, while ensuring the comparability of efforts among them, taking into account differences in their national circumstances; (ii) Nationally appropriate mitigation actions by developing country Parties in the context of sustainable development, supported and enabled by technology, financing and capacity-building, in a measurable, reportable and verifiable manner; (iii) Policy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries; 12

13 (iv) Cooperative sectoral approaches and sector-specific actions, in order to enhance implementation of Article 4, paragraph 1(c), of the Convention; (v) Various approaches, including opportunities for using markets, to enhance the cost-effectiveness of, and to promote, mitigation actions, bearing in mind different circumstances of developed and developing countries; (vi) Economic and social consequences of response measures; (vii) Ways to strengthen the catalytic role of the Convention in encouraging multilateral bodies, the public and private sectors and civil society, building on synergies among activities and processes, as a means to support mitigation in a coherent and integrated manner; (c) Enhanced action on adaptation, including, inter alia, consideration of: (i) International cooperation to support urgent implementation of adaptation actions, including through vulnerability assessments, prioritization of actions, financial needs assessments, capacity-building and response strategies, integration of adaptation actions into sectoral and national planning, specific projects and programmes, means to incentivize the implementation of adaptation actions, and other ways to enable climate-resilient development and reduce vulnerability of all Parties, taking into account the urgent and immediate needs of developing countries that are particularly vulnerable to the adverse effects of climate change, especially the least developed countries and small island developing States, and further taking into account the needs of countries in Africa affected by drought, desertification and floods; (ii) Risk management and risk reduction strategies, including risk sharing and transfer mechanisms such as insurance; (iii) Disaster reduction strategies and means to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change; (iv) Economic diversification to build resilience; (v) Ways to strengthen the catalytic role of the Convention in encouraging multilateral bodies, the public and private sectors and civil society, building on synergies among activities and processes, as a means to support adaptation in a coherent and integrated manner; (d) Enhanced action on technology development and transfer to support action on mitigation and adaptation, including, inter alia, consideration of: (i) Effective mechanisms and enhanced means for the removal of obstacles to, 13

14 and provision of financial and other incentives for, scaling up of the development and transfer of technology to developing country Parties in order to promote access to affordable environmentally sound technologies; (ii) Ways to accelerate deployment, diffusion and transfer of affordable environmentally sound technologies; (iii) Cooperation on research and development of current, new and innovative technology, including win-win solutions; (iv) The effectiveness of mechanisms and tools for technology cooperation in specific sectors; (e) Enhanced action on the provision of financial resources and investment to support action on mitigation and adaptation and technology cooperation, including, inter alia, consideration of: (i) Improved access to adequate, predictable and sustainable financial resources and financial and technical support, and the provision of new and additional resources, including official and concessional funding for developing country Parties; (ii) Positive incentives for developing country Parties for the enhanced implementation of national mitigation strategies and adaptation action; (iii) Innovative means of funding to assist developing country Parties that are particularly vulnerable to the adverse impacts of climate change in meeting the cost of adaptation; (iv) Means to incentivize the implementation of adaptation actions on the basis of sustainable development policies; (v) Mobilization of public- and private-sector funding and investment, including facilitation of carbon-friendly investment choices; (vi) Financial and technical support for capacity-building in the assessment of the costs of adaptation in developing countries, in particular the most vulnerable ones, to aid in determining their financial needs; QUESTIONS AND DISCUSSION 1. At the Bali meeting, the Parties agreed to structure future negotiations around four main themes, or building blocks: mitigation, adaptation, financing, and technology. How does the Bali Action Plan address these issues? 14

15 2. How are the various positions of the main negotiating blocs reflected in the Bali Action Plan? For example, did the United States, or China for that matter, agree to negotiate any future binding commitments? Does the Action Plan suggest the broader focus on development that developing countries wanted? 3. An earlier version of the Bali Action Plan included a proposal from the European Union and the G77 and China for developed (Annex I) countries to reduce their emissions by 25 to 40 percent below 1990 levels by This proposal relied on the most recent scientific findings of the IPCC, which reported that GHG emissions would peak within 10 to 15 years with emissions reductions of this size. At the insistence of the United States, but joined by Japan, Canada and Russia, the adopted agreement excludes specific GHG reduction targets. Instead, it calls for agreement on a shared vision for long-term cooperative action, including a long-term global goal for emission reductions. What are the advantages and disadvantages of excluding a specific target in the Bali Action Plan? 4. Developing countries committed to taking nationally appropriate mitigation actions to address climate change, provided that they receive sufficient financial, technical, and capacity building support to do so; both the mitigation actions and the provision of support would be measurable, reportable and verifiable. As lawyers for the Center for International Environmental Law wrote, This marks an important evolution of thinking among the G-77 and China, reflecting the urgency of climate change and the understanding that the UNFCCC principle of common but differentiated responsibility should define not only the relationship between Annex I and non-annex countries, but also the relationships among non-annex I countries with different social, economic, and other relevant characteristics. Craig Hart et al., East Asia Clean Development Mechanism: Engaging East Asia Countries in Sustainable Development and Climate Regulation through the CDM, 20 GEO. INT L ENVTL. L. REV. 645, (2008). Do you agree? 5. Since the Bali negotiations, the Parties have struggled to articulate a shared vision. See paragraph 1(a) of the Bali Action Plan. Parties have sought to include specific emissions reductions amounts, a maximum allowable temperature increase, financial commitments, and an array of other goals in the shared vision. Based on the language of the Bali Action Plan, what do you think should be included in it? 6. As one might expect from a document as contentious as this, reviews of the Bali Action Plan were mixed. Yvo de Boer, the Executive Secretary of the UNFCCC Secretariat, called the plan a real breakthrough, a real opportunity for the international community to successfully fight climate change. Environmentalists were more subdued in their comments. According to Marcelo Furtado of Greenpeace Brazil: The people of the world wanted more. They wanted binding targets. Others, such as the World Wildlife Fund, thought the world caved to U.S. pressure. What do you think? III. BUILDING A NEW CLIMATE CHANGE REGIME: FROM COPEHAGEN TO DURBAN 15

16 As the international community left Bali in December 2007, it faced the daunting task of reaching agreement on a post-kyoto Protocol regime by the end of 2009 just two years away. While one might have expected the Parties to streamline their negotiations or focus on specific actions to meet this deadline, the negotiations after Bali were neither orderly nor logical for a variety of reasons that continue to affect the tenor and substance of the discussions. First, even as new studies showed that Arctic ice and glaciers were melting faster than predicted, strengthening the scientific case for strong and urgent action, the global economy entered a prolonged recession that acted as a significant counterweight to meaningful action on climate change. Second, the global carbon market continued to grow, creating a substantial economic sector now profiting from the carbon market. This sector sought, and continues to seek, a global regulatory system that sets clear and predictable guidance for carbon trading, even as skepticism over the climate benefits of carbon markets has grown. Third, the importance of and interest in land use and forestry in the negotiations complicated the negotiations and led to prolonged debate over how to account for emissions and removals from land use and forestry activities. Fourth, the Parties developed a complex and overlapping set of negotiating forums within the climate regime. The Bali Action Plan established, under the auspices of the UNFCCC, the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA) to negotiate the Action Plan s mitigation, adaptation, finance, and technology provisions. In addition, the Kyoto Protocol Parties had previously established the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP) to negotiate a second commitment period to the Kyoto Protocol. These two ad hoc working groups negotiated in parallel to each other with one group operating under the UNFCCC and the other under the Kyoto Protocol with potentially conflicting goals or strategies. At the same time, the Parties to the UNFCCC and the Kyoto Protocol have continued to meet as the Conference of the Parties to the UNFCCC and the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol. Meanwhile, the climate regime s two technical bodies, the Subsidiary Body for Implementation and Subsidiary Body for Scientific and Technological Advice, continued to meet in order to provide advice to the four negotiating bodies. Even if this structure did not equate to a six-ring circus, it certainly made participating in the negotiations difficult, especially for small delegations without the capacity to fill several negotiating rooms simultaneously. Nonetheless, the Bali Action Plan created expectations for what might be included in a post- Kyoto Protocol agreement. First, the Action Plan strongly suggested that developing countries or at least some of them will have commitments of some kind. Second, the Plan s call for commitments or actions for developed countries and appropriate mitigation actions... in the context of sustainable development for developing countries strongly hinted that the post-kyoto Protocol agreement may include strategies unrelated to specific reduction commitments. While reading the material that follows, pay close attention to how the Parties have addressed these two fundamental issues. In addition, focus on the interplay between developed and developing countries. In particular, consider the following questions: How much progress has been made on the four elements of the Bali Action Plan? 16

17 Note the insistence by developing countries on the so-called two-track approach. What is the two-track approach and why do developing countries think it is so important? If you are a negotiator from a Pacific Small Island Developing State already reeling from climate change impacts, how would you approach the new negotiations? A. The Road to Copenhagen After the Bali negotiations and before meeting in Copenhagen at the end of 2009, the Parties met six times in two years to negotiate actions to implement the Bali Action Plan. Despite the number of meetings, the Parties made little progress. Rather than clarify negotiating texts, each meeting seemed to raise additional questions, and with those questions additional brackets were added to the already muddled text. Developing countries insisted that developed countries take the lead by adopting further targets and timetables under the Kyoto Protocol. They further insisted that any nationally appropriate mitigation actions (NAMAs) for developing countries must be nonbinding. Developing countries also demanded billions of dollars for adaptation and implementation of NAMAs. Not surprisingly, these positions ran counter to those of many developed countries, such as Australia, Canada, and the United States, which wanted developing countries to adopt binding commitments. Economic concerns lay behind this demand. Without binding commitments to reduce emissions of carbon dioxide and other greenhouse gases, these developed countries worried that developing country industries could produce goods less expensively than similar goods made in developed countries, which would carry the costs of greenhouse gas mitigation. Political considerations also demanded some movement from developing countries. Climate change legislation had failed in Australia and climate change legislation had stalled in the United States, narrowing the negotiating options for those two countries. Many in the U.S. Senate believed the costs of climate change mitigation were too high, particularly if its main trade competitors (i.e., China and India) were not subject to emissions caps. This limited U.S. negotiators, who knew that they would need Senate consent to ratify any new international treaty emerging from what were expected to be the final negotiations in Copenhagen at the end of Against this political and economic background, the Parties sought to reach agreement on three fundamental issues: (1) What would the commitment goal be? (2) Which countries would be subject to binding or nonbinding commitments? and (3) What type of mitigation commitments would be included in the post-kyoto regime: targets and timetables like those in the Kyoto Protocol or something different? 1. The Commitment Goal The Bali Action Plan called for a shared vision for long-term cooperative action, including a 17