Hostname: page-component-78c5997874-g7gxr Total loading time: 0 Render date: 2024-11-09T22:41:19.017Z Has data issue: false hasContentIssue false
  • English
  • Français

ADDRESSING THE ‘POST-KYOTO’ STRESS DISORDER: REFLECTIONS ON THE EMERGING LEGAL ARCHITECTURE OF THE CLIMATE REGIME

Published online by Cambridge University Press:  21 October 2009

Lavanya Rajamani
Lavanya Rajamani
Affiliation:
Professor, Centre for Policy Research, New Delhi.
Get access Rights & Permissions [Opens in a new window]

Abstract

In December 2007, the international community adopted the Bali Action Plan which launched a process to reach an ‘agreed outcome’ on long-term cooperative action on climate change, with a scheduled end in Copenhagen, December 2009. The term ‘an agreed outcome’ suggests a lack of agreement on both the legal form that the likely outcome of this process could take, and the level of ambition that it should reflect. This lack of agreement continues to haunt the process. There are a range of legal form options for a new climate instrument—from a set of Conference of Parties decisions to a legally binding instrument, either to replace or supplement the Kyoto Protocol—and the choice between them for States is predicated primarily on political and strategic considerations. Nevertheless the legal status, procedural requirements, symbolic signalling effects and regime-building characteristics of different legal form options will play an important role in determining the legal form of the Copenhagen ‘agreed outcome’. This article identifies and explores the range of legal form options available to States in the negotiation process, and outlines the political and strategic considerations at play and will ultimately govern choice of legal form. This article argues that one of the most significant factors hindering substantive progress on a post-2012 climate agreement is what is characterized here as the ‘post-Kyoto stress disorder’, a lack of trust amongst some developing countries that industrialized countries will, given current and past form, honour their commitments, and/or take the lead in the new climate agreement. This article makes the case that post-Kyoto stress disorder will likely prevent certain legal form options from acquiring traction in the process and favour others.

Type
Article
Information
International & Comparative Law Quarterly , Volume 58 , Issue 4 , October 2009 , pp. 803 - 834
Copyright
Copyright © 2009 British Institute of International and Comparative Law

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 United Nations Framework Convention on Climate Change (adopted 29 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (hereinafter FCCC).

2 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 10 December 1997, entered into force 16 February 2005) 37 ILM 22 (hereinafter Kyoto Protocol).

3 176 countries and the EC are Party to the Kyoto Protocol, and 192 countries are Party to the FCCC, available at http://www.unfccc.int.

4 The current commitments require industrialized countries to reduce a basket of green house gases (GHG) to 5 per cent below 1990 levels in the commitment period 2008–2012—see art 3, Kyoto Protocol. The IPCC recommends 25–40 per cent below 1990 levels by 2020 for industrialized countries, see T Barker et al, Climate Change 2007: Mitigation of Climate Change: Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, Cambridge, 2007) Box 13.7, 776. Two IPCC authors later recommended 15–30 per cent below baseline for developing countries by 2020; see M den Elzen, ‘Emission Reduction Trade-Offs for Meeting Concentration Targets’ Bonn Climate Change Talks, Presentation at the IPCC in-session workshop, UNFCCC SBSTA 28, 6 June 2008, available at http://unfccc.int/files/meetings/sb28/application/pdf/sb28_ipcc_6_den_elzen.pdf.

5 For status of implementation, see the annual compilation and accounting report for Annex B Parties under the Kyoto Protocol FCCC/KP/CMP/2008/9/Rev.1. The EU-15 is currently 2.7 per cent below 1990 levels, economies in transition are 30–40 per cent below 1990 levels due to economic restructuring, and other industrialized countries are marginally above 1990 levels. The US as a non-Kyoto Party is not part of the analysis.

6 art 3, Kyoto Protocol.

7 See 2007/2008 Human Development Report, available at http://hdrstats.undp.org/countries/data_sheets/cty_ds_USA.html

8 Decision 1/CP.13, Bali Action Plan, in Report of the Conference of the Parties on its Thirteenth Session, held in Bali from 3–15 December 2007, Addendum, Part Two: Action taken by the Conference of the Parties at its Thirteenth Session, FCCC/CP/2007/6/Add.1 (14 March 2008) (hereinafter Bali Action Plan). For a detailed analysis of the Bali Action Plan, on which this article builds, see Rajamani, L, ‘From Berlin to Bali and Beyond: Killing Kyoto Softly’ (2008) 57 ICLQ 3 909–939.CrossRefGoogle Scholar

9 The AWG-LCA is the second of the two negotiating processes under the climate treaties. The Kyoto Protocol came into force on 16 February 2005, and at the first Meeting of Parties to the Kyoto Protocol and the Eleventh Conference of Parties to the FCCC, in December 2005, discussions commenced on how the climate regime might be structured after 2012. At the time, two separate processes were initiated: an Ad Hoc Open-Ended Working Group to consider further commitments for developed countries beyond 2012 under the Kyoto Protocol (AWG-KP) and a Dialogue on long-term cooperative action under the FCCC. The Dialogue covered actions by all parties but was neither binding nor authorized to open negotiations leading to new commitments. The Dialogue drew to a formal close at the thirteenth Conference of Parties to the FCCC in Bali, December 2007, and gave way to the Bali Action Plan, and the establishment of the AWG-LCA. See Consideration of Commitments for Subsequent Periods for Parties Included in Annex I to the Convention under art 3, Paragraph 9 of the Kyoto Protocol, Decision 1/CMP.1, FCCC/KP/CMP/2005/8/Add.1 (2006); and Dialogue on Long-Term Cooperative Action to Address Climate Change by Enhancing the Implementation of the Convention, Decision 1/CP.11, FCCC/CP/2005/Add.1 (2006).

10 Work Program For 2009, Draft Conclusions Proposed By The Chair, Ad Hoc Working Group On Long-Term Cooperative Action Under The Convention, Fourth Session, Poznan, 1–10 December 2008, FCCC/AWGLCA/2008/L.10 (10 December 2008).

11 See eg the statement by P Ghosh, India, at the In-session Shared Vision Workshop, Poznan, 2 December 2008 (cautioning that if the principle of equal rights to the common atmospheric resource is not followed, and unequal arrangements are sought to be foisted in Copenhagen, and there is no agreement thereby, ‘do not at that time feign surprise, shock, and dismay’) available at http://copportal1.man.poznan.pi/.

12 A case in point is Decision 1/CP.3, Adoption of the Kyoto Protocol to the United Nations Framework Convention on Climate Change, in ‘Report of the Conference of the Parties on its Third Session, held at Kyoto’ from 1 to 11 December 1997, Addendum, Part Two, Action Taken by the Conference of the Parties, FCCC/CP/1997/7/Add.1 (25 March 1998).

13 Paragraph 3, Preamble, Decision 1/CP.1, The Berlin Mandate: Review of Adequacy of art 4, paragraph 2, sub-paragraph (a) and (b), of the Convention, including proposals related to a Protocol and decisions on follow-up contained in the Report of the Conference of Parties on its first session held at Berlin from 28 March to 7 April 1995 FCCC/CP/1995/7/Add.1 (1995).

14 Although amendments to the FCCC are an option before Parties, it could be argued that since the process launched by the Bali Action Plan is intended to enable ‘the full, effective and sustained implementation of the Convention’, the process cannot take within its fold amendments to the Convention. See (n 8).

15 Many Annex I countries are seeking, through this process, to initiate extensive amendments to the Kyoto Protocol, but there is considerable resistance to this from developing countries who argue that the mandate of the AWG-KP is limited to considering further commitments for Annex I Parties in accordance with Protocol art 3 (9). See Decision 1/CMP 1, ‘Consideration of commitments for subsequent periods for Parties included in Annex I to the Convention under art 3, para 9, of the Kyoto Protocol’ in the Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its first session, held at Montreal from 28 November to 10 December 2005 FCCC/KP/CMP/2005/8/Add.1 (30 March 2006). Japan, in seeking to integrate the work of the AWG-KP and AWG-LCA, submitted its proposed Protocol, to both the AWG-KP and the AWG-LCA.

16 There are varying definitions of effectiveness, which is recognized as distinct from compliance and implementation. The term effectiveness is used here to signify the degree to which the agreement is designed to meet the climate regime's principal policy objectives, and to induce the desired behavioural change necessary to achieve these objectives. See Raustiala, K, ‘Compliance and Effectiveness in International Regulatory Cooperation’ (2000) 32 Case W Res J Int'l L 393–394.Google Scholar

17 The recent Declaration of the Major Economies Forum endorsed the scientific view that global average temperature increase should be limited to 2 degrees Centigrade above pre-industrial levels. See Declaration of the Leaders of the Major Economies Forum on Energy and Climate, L'Aquila, Italy, 9 July 2009, available at http://www.g8italia2009.it/G8/Home/Summit/G8-G8_Layout_locale-1199882116809_Atti.htm. The Major Economies Forum comprises a sub-set, albeit an influential one, of the Parties to the FCCC, and this view is yet to be endorsed in the climate process.

18 Report on the informal ministerial round table on a shared vision for long-term cooperative action, Revised summary by the chair, FCCC/CP/2008/CRP.1/Rev.1 (12 December 2008).

19 See On Demand Webcast, COP-14, Poznan, Seventh Meeting, 12 December 2008, http://copportall.man.poznan.

20 See Work Programme for 2009, Draft Conclusions proposed by the Chair in FCCC/AWGLCA/2008/L.10 (10 December 2008).

21 It may be possible to provide for provisional application but this has its limitations.

22 See submissions, inter alia, of Australia, New Zealand, Canada and Japan to the AWG-LCA in April 2009, available at, http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php.

23 See submission of South Africa, 24 April 2009, ibid.

24 See US Submission to the AWG-LCA, 4 May 2009, available at http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php. The US submission calls for an ‘implementing agreement’ under the Framework Convention, in order ‘to allow for legally binding approaches’. In conjunction with the language used in the context of developed country mitigation, ie that ‘Appendix 1 includes quantitative emissions reductions/removals in the 2020 timeframe, in conformity with domestic law’, this suggests that whether the implementing agreement will be binding or non-binding depends on whether the domestic law requires it to be so.

25 Brunnée, J, ‘COPing with Consent: Law-Making under Multilateral Environmental Agreements’ (2002) 15 Leiden J of Int'l L 1.CrossRefGoogle Scholar

26 The regime of State Responsibility is available, but in addition to the difficulties in establishing a clear defined obligation (either custom or within the FCCC which largely contains obligations of conduct rather than result), and its concrete breach, there are difficulties in establishing a direct causal link between a particular State's conduct and the material harm produced. It will also be challenging to locate international judicial fora that the offending States have accepted the jurisdiction of. This is not to argue that the case cannot be made and sustained, but that such an action is likely to face uncharted and difficult waters. See generally R Verheyen, Climate Change Damage and International Law. Prevention Duties and State Responsibility (Brill Publishing, Leiden, 2005) and Voigt, C, ‘State Responsibility for Climate Change Damages’ (2008) 77 Nordic Journal of International Law 1.CrossRefGoogle Scholar

27 A vast majority of the compliance systems in Multilateral Environmental Agreements are designed to facilitate compliance rather than to punish non-compliance. The Kyoto Protocol Compliance system is the only one of its kind in that its enforcement branch contains functions of a quasi-judicial character, and entails (limited) punitive consequences.

28 See eg ‘Canada sued for abandoning Kyoto Climate Commitment’ Environmental News Service http://www.ens-newswire.com/ens/may2007/2007-05-29-02.asp (29 May 2007) and ‘“Impossible” for Canada to meet Kyoto targets’ CBC News http://www.cbc.ca/canada/story/2006/04/07/kyoto060407.html (7 April 2006).

29 Decision 27/CMP.1, ‘Procedures and mechanisms relating to compliance under the Kyoto Protocol’ in the Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its first session, held at Montreal from 28 November to 10 December 2005, Addendum, Part Two: Action taken, FCCC/KP/CMP/2005/8/Add.3 (30 March 2006), 92, 102.

30 See Voigt (n 26) 1–22; see generally Verheyen (n 26).

31 DM Johnston, Consent and Commitment in the World Community (Hotei Publishing, Leiden, 1997) 197–8.

32 See above the discussion on COP decisions.

33 Emphasis added.

34 art 15(2), FCCC.

35 art 21(3), Kyoto Protocol.

36 FCCC Article 17(2) reads ‘the text of any proposed protocol shall be communicated to the Parties...’ It does not indicate who may propose a Protocol. In contrast, in the case of amendments FCCC art 15(1) specifies, ‘[a]ny Party may propose amendments to the Convention,’ before proceeding in Article 15(2) to require such text to be communicated to Parties by the Secretariat.

37 See (n 10).

38 Report of the Ad Hoc Group on the Berlin Mandate on the work of its Sixth Session, Bonn, 3–7 March 1997, in FCCC/AGBM/1997/3, paras 16 and 17.

39 Neither FCCC Article 17 nor the rules of procedure require the text to be sent out in all official UN languages in order for it to constitute effective notice. The Kyoto practice is of persuasive rather than binding precedential value.

40 A treaty for instance would use terms such as ‘article’, ‘agree’, and ‘obligations’, whereas COP decision language would contain terms such as ‘paragraph’, ‘decide’ and ‘commitments’. See A Aust, Modern Treaty Law and Practice (Cambridge University Press, Cambridge, 2007) 496 (Appendix G).

41 ibid 434–435.

42 See Trinidad and Tobago on behalf of the Alliance of Small Island States, ‘Draft Protocol to the United Nations Framework Convention on Climate Change on Greenhouse Gas Emissions Reductions’ Implementation of the Berlin Mandate, Proposals from Parties FCCC/AGBM/1996/Misc.2 (17 May 1996).

43 The US requested communication of its ‘implementing agreement.’ FCCC Article 17 only refers to ‘Protocols.’ It does not, by implication, appear to envisage the creation of any other type of legal instrument under the FCCC. However, FCCC Article 7(2), which enumerates the powers of the COP, requires the COP to ‘keep under regular review the implementation of the Convention and any related legal instruments’. It could be argued that related legal instruments encompass instruments that are differently christened.

44 Revised Negotiating Text, FCCC AWGLCA/2009/INF.1 (22 June 2009).

45 ibid para 18.

46 See ‘Report of the Ad Hoc Group on the Berlin Mandate on the work of its Sixth Session’ Bonn, 3–7 March 1997, Addendum, Proposals for a Protocol or another legal instrument, Negotiating text by the Chairman, FCCC/AGBM/1997/3/Add.1 (22 April 1997).

47 Inter-Office Memo from the Under-Secretary General, Office of the Legal Counsel to the Executive Secretary, UNFCCC, ‘Adoption of a Protocol to UNFCCC, Interpretation of Article 17, paragraph 2’, 29 May 1996 (on file with the author).

48 The EC had in 1997, perhaps to forestall any difficulties encountered in adopting the Kyoto Protocol, suggested an amendment remedying this: ‘Arrangements for Intergovernmental Meetings, Amendments to the Convention or its Annexes, Netherlands (on behalf of the European Community and its member states): proposed amendment to art 17 of the convention’ FCCC/SBI/1997/15 (20 June 1997) (proposing a 3/4 majority voting procedure should efforts at consensus fail).

49 Japan's proposed Protocol contains an entry into force provision that reflects this change from Kyoto's art 25. It proposes a bar of XX Parties (not just Annex I Parties as in the Kyoto Protocol) accounting for XX per cent of global energy-related carbon dioxide emissions for 2007. Japan plans to specify the numbers later, subject to negotiation. See ‘A Draft Protocol to the UNFCCC: A Negotiating text for consideration’ at the Sixth Session of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention (AWG-LCA-6) (24 April 2007); the US Implementing Agreement also contains a note on entry into force stating that it should neither be ‘over-inclusive (in terms of number of Parties) nor under-inclusive (in terms of the types of Parties whose participation is necessary for the Agreement to enter into force),’ art 10, US Submission on the Copenhagen Agreed Outcome, 4 May 2009, both available at http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php.

50 Barker et al, Technical Summary (n 4) 90, and Box 13.7, 776.

51 Available at: http://dev.ico.org/documents/ica2007e.pdf.

52 ibid.

53 A Chayes and EB Skolnikoff with DG Victor, ‘A Prompt Start: Implementing the Framework Convention on Climate Change’ (MIT Centre for International Studies, Cambridge, 1992).

54 ‘Tracing the Origins of the Kyoto Protocol: An Article by Article Textual History’ FCCC/TP/2000/2 108.

55 Art 25, Vienna Convention on the Law of Treaties, (adopted 23 May 1969, entered into force 27 January 1980) reprinted in 8 ILM 679 (hereinafter Vienna Convention).

56 Decision 17/CP.7, ‘Modalities and procedures for a clean development mechanism as defined in Article 12 of the Kyoto Protocol’ in Report Of The Conference Of The Parties on its Seventh Session, held at Marrakesh from 29 October to 10 November, Part Two: Action Taken by the Conference of the Parties, Addendum, Volume II, 2001 FCCC/CP/2001/13/Add.2, 20.

57 Protocol of Provisional Application of the General Agreement on Tariffs and Trade (signed 30 October 1947) 55 UNTS 308.

58 Agreement Relating to the Implementation of Part XI of the UN Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994, entered into force 28 July 1996) 33 ILM 1309. Art 7 provides that the Agreement shall be applied provisionally from a certain date, unless a State notifies the depositary that it will not so apply this agreement. In this version of provisional application, implied consent to provisional application was provided for; see (n 35) 174.

59 Energy Charter Treaty 33 ILM 367 (1995).

60 ibid. For instance, art 45 of the Energy Charter contains the caveat ‘to the extent that such provisional application is not inconsistent with its constitution, laws or regulations’.

61 Protocol on Environmental Protection to the Antarctic Treaty (adopted 4 October 1991, entered into force 14 January 1998) 30 ILM 1455.

62 Submission by Japan, in ‘Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan’ Submissions from Parties, FCCC/AWGLCA/2009/MISC.1 (13 March 2009).

63 See Japan's draft Protocol, in particular art 3, art 17 and Annex C, in its submission to the AWG-LCA, 24 April, 2009, available at http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php.

64 Submission by Australia, in ‘Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan’ Submissions from Parties, FCCC/AWGLCA/2009/MISC.1/Add.3 (27 March 2009); See also New Zealand's Submission to the AWG-LCA, 27 April 2009, available at, http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php.

65 The US has suggested a particular legal form option—an ‘implementing agreement under the Framework Convention, in order to allow for legally binding approaches and to reflect the Bali Action Plan's mandate to further the implementation of the Convention.’ As the US draft agreement includes final clauses, it is intended to be a legally binding instrument. The content of this implementing agreement will likely be limited. It will be a shell or a framework allowing for different approaches through appendices. The careful use of the term ‘legally binding approaches’ here signifies the status of different national approaches. The content of the approaches, targets if they contain any, will be legally binding in some countries under domestic law, and not so in others. The proposed Implementing Agreement in form is akin to a Protocol under art 17. Protocols to framework treaties are intended to implement the treaties either generally or with respect to some of its provisions. In practice, Parties adopted the Kyoto Protocol in 1997 to implement the Convention. The Implementing Agreement would be another such, albeit christened differently. The designation of this text as an Implementing Agreement appears to be primarily for political reasons—it highlights the differences with the Kyoto Protocol not only in substance, but also in its legal form. It is intended to stress ‘implementation’ of the Convention, the parent treaty to which the US is and has been a Party to. This may help the US nudge the Implementing Agreement through its domestic legislative process.

66 Art 54, Vienna Convention.

67 Art 59, Vienna Convention.

68 Art 59 (a) and (b), Vienna Convention.

69 Art 30, Vienna Convention.

70 Art 70, Vienna Convention.

71 Art 27, Kyoto Protocol permits States to withdraw three years after the Protocol's entry into force. Any such withdrawal will take effect one year after the notice of withdrawal.

72 Art 25, Kyoto Protocol lays out the entry into force requirements for the Protocol—55 Parties to the Convention, incorporating Parties included in Annex I which account in total for at least 55 per cent of the total carbon dioxide emissions for 1990 of the Parties included in Annex I.

73 Art 55 of the Vienna Convention provides that ‘a multilateral treaty does not terminate by reason only of the fact that the number of the parties falls below the number necessary for its entry into force.’

74 See (n 35) 177.

75 See (n 63).

76 See (n 64).

77 This is contentious because Parties do not have the mandate either under the Bali Action Plan that established the AWG-LCA or under Decision 1/CMP 1 that established the AWG-KP to engage in such an exercise. See Decision 1/CMP 1, FCCC/KP/CMP/2005/8/Add.1.

78 See (n 29).

79 Marrakesh Agreement Establishing the World Trade Organization (15 April 1994) The Legal Texts: the Results of the Uruguay Round of Multilateral Trade Negotiations, 1867 UNTS 154, available at: http://www.wto.org/english/docs_e/legal_e/legal_e.htm#wtoagreement.

80 See (n 9).

81 Submission by Brazil, ‘Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan, Submissions from Parties’ in FCCC/AWGLCA/2009/MISC.1 (13 March 2009) 17.

82 See Submission by India, ‘Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan, Submissions from Parties’ in FCCC/AWGLCA/2008/Misc.5/Add.2 (Part I) (10 December 2009) 155.

83 Japan suggests categorizing non-Annex I Parties into groups based on their stage of economic development, and encouraging mitigation actions tailored to their common but differentiated responsibilities; Submission by Japan in ‘Views regarding the Work Programme for the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention taking into account the elements to be addressed by the group’ (Decision 1/CP.13) Submission from Parties, Addendum, FCCC/AWGLCA/2008/MISC.1/Add.1 (12 March 2008) at 15–16, 25 (relevant factors identified include economic status, capacity to respond (eg GDP per capita), share of global emissions, emissions per capita and relative responsibility to climate change). Australia argues that if the GDP per capita of FCCC Parties is taken there are ‘more non-Annex-I Parties that are advanced economies than existing Annex-I Parties.’ And, therefore it recommends that Parties provide on an objective basis for graduation of non-Annex I Parties to Annex I, ‘with a view to all advanced economies adopting a comparable effort towards the mitigation of greenhouse gas emissions.’ Submission by Australia, in ‘Views and information on the means to achieve mitigation objectives of Annex I Parties, Submissions from Parties,'Addendum, FCCC/KP/AWG/2008/MISC.1/Add.2.

84 Rajamani, L, ‘Differentiation in the Post-2012 Climate Regime’ (2008) 4 Policy Quarterly 48.Google Scholar

85 New Zealand's submission to the AWG-LCA, 27 April 2007, available at http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php.

86 See generally on sustainable development policies and measures (SD-PAMS), H Winkler et al, ‘Sustainable Development Policies and Measures: Starting from Development to Tackle Climate Change’ in K Baumert et al (eds), Building on the Kyoto Protocol: Options for Protecting the Climate, (World Resources Institute, Washington DC, 2002) 61–87.

87 ‘Malta to Join Developed Nations in UN Climate Change Convention’ Times of Malta (Valletta, Malta, 15 December 2008).

88 See ‘Draft Rules of Procedure of the Conference of the Parties and its Subsidiary Bodies’ in FCCC/CP/1996/2, and arts 15 and 16, FCCC.

89 See Matters Referred to the Subsidiary Body for Implementation by the Conference of the Parties, ‘Proposal to Amend the Lists in Annexes I and II to the Convention, Proposal to Amend the List in Annexes I and II to the Convention by Removing the Name of Turkey: Review of Information and Possible Decisions under Article 4, Paragraph 2 (F)’ Recommendation of the Subsidiary Body for Implementation, Doc UNFCCC/SBI/2001/L.8 (2001).

90 Turkey's Views on the Fulfilment of the Bali Action Plan and the Components of the Agreed Outcome, 24 April 2009, available at http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php

91 Arts 15(2) and 15(3), FCCC and arts 20(2) and 21(3), Kyoto Protocol.

92 Submission by Brazil, ‘Views and Proposals on Paragraph 1 of the Bali Action Plan’ 6 February 2009, 3: ‘[r]egarding the legal nature of the outcome of the Bali Action Plan, Brazil believes it could be expressed, for example, in a set of COP decisions’ available at http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php.

93 India's recent submissions to the AWG-LCA use COP decision language. See Submissions by India, 24 April 2009, available at, http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php

94 Philippine Submission to the AWG-LCA, 24 April 2009, available at http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php.

95 Submissions by Colombia, 25 April 2009, available at, http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php.

96 An exception is the text submitted by Panama, Paraguay and El Salvador, 29 April 2009 (which is drafted in language that is more easily associated with treaty text), available at, http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php.

97 See text accompanying (n 12).

98 The legal personality that COPs possess has been subject to considerable academic discussion. See Churchill, R and Ulfstein, G, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little Noticed Phenomenon in International Law’ (2000) 94 AJIL 623.CrossRefGoogle Scholar

99 Art 31(3) (a), Vienna Convention on the Law of Treaties.

100 ibid (n 93) 641.

101 The enabling clause in the relevant treaty may authorize a COP decision to be binding, or require more, as for example in the case of Art 18, Kyoto Protocol (mandating that compliance procedures and mechanisms entailing binding consequences shall be adopted by means of an amendment to the Protocol), see Brunnée (n 25).

102 See (n 40) 238–43.

103 Explicit authorization for binding law-making is provided infrequently. Article 2(9) Montreal Protocol 1987 is an oft-quoted example.

104 See (n 25) 32.

105 Art 7 FCCC; some argue that the legislative competencies provided in some multilateral environmental agreements to progressively develop the regime amount to ‘powers of formal revision of the treaty.’ See Röben, V, ‘Institutional Developments under Modern International Environmental Agreements’ [2000] Max Planck Yearbook of United Nations Law 391.Google Scholar

106 Art 7(2) FCCC.

107 Art 7(2) (m) FCCC.

108 Art 15 FCCC.

109 Art 17 FCCC.

110 See (n 98).

111 Art 17 Kyoto Protocol.

112 (n 107).

113 See, eg Art 6 (2), 12 (7) and 17 Kyoto Protocol, and Principles, Nature and Scope of the Mechanisms pursuant to Art 6, 12 and 17 Kyoto Protocol, Decision 2/CMP 1, in FCCC/KP/CMP/2005/8/Add.1 (2005).

114 Pursuant to Art 4(2) (d) FCCC.

115 See, eg Berlin Mandate (n 13).

116 Compare para 2(b) of the Berlin Mandate, and the chapeau of art 10 Kyoto Protocol. Both contain language on not ‘introducing any new commitments for Parties not included in Annex I, but reaffirming existing commitments.

117 See Report of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention on its first session, held in Bangkok from 31 March to 4 April 2008, FCCC/AWGLCA/2008/3 (2008).

118 See ‘Enabling the full, effective and sustained implementation of the Convention through long-term cooperative action now, up to and beyond 2012, Draft Conclusions Proposed by the Chair’ in FCCC/AWGLCA/2008/L.7 (27 August 2008).

119 ‘Ideas and Proposals on Paragraph 1 of the Bali Action Plan, Revised Note by the Chair’ FCCC/AWGLCA/2008/16/Rev.1 (10 December 2008).

120 See Submission by South Africa, ‘Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan’ Submissions from Parties, FCCC/AWGLCA/2009/MISC.4 (Part II) 95.

121 See Submission by the Republic of Korea, ibid 78.

122 Decision 1/CP.8, ‘Report of the Conference of the Parties on its eighth session, held at New Delhi from 23 October to 1 November 2002’ Addendum, Part Two: Action taken by the Conference of the Parties, FCCC/CP/2002/7/Add.1 (28 March 2003).

123 ‘A new legal instrument such as a Protocol’ under a framework treaty could in theory be either a supplementary instrument or an amending instrument; see Aust (n 40). However, it could be argued the climate regime only envisions supplementary rather than amending instruments. FCCC art 17 (4) specifies that only Parties to the Convention may be Parties to the Protocol. Protocols to the FCCC are therefore not stand-alone instruments. FCCC Art 15 provides a detailed procedure for amendments to the Convention, suggesting by implication that Protocols under Art 17 were intended to be supplementary not amending instruments.

124 Although the Bali Action Plan only requires ‘nationally appropriate mitigation actions’ of developing countries, Japan has indicated in oral interventions at the negotiations that it expects ‘advanced’ developing countries to take ‘commitments’. Interesting also in this context, is that the US in the AWG-LCA August informal consultations, referred to ‘nationally appropriate mitigation actions’ for all.

125 The Bali Action Plan uses different formulations in paras 1(b)(i) and 1(b) (ii) for developed-country mitigation commitments and developing-country nationally appropriate mitigation actions, and the distinction has come to be termed as the Bali ‘firewall’. The US, however, perceives the Bali Action Plan as representing a bridge, rather than a firewall, between developed and developing country mitigation commitments/actions.

126 Note from the Chair of the AWG-LCA regarding inputs to the negotiating text, 17 April 2009, available at http://unfccc.int/files/meetings/ad_hoc_working_groups/lca/application/pdf/note_from_awg-lca_chair_090417.pdf.

127 Decision 1/CP8, ‘Delhi Ministerial Declaration on Climate Change and Sustainable Development’ in Report of the Conference Of The Parties on its eighth session, held at New Delhi from 23 October to 1 November 2002, Addendum, Part Two: Action taken by the Conference of the Parties at its eighth session, FCCC/CP/2002/7/Add.1 (28 March 2003).

128 Ministerial Declaration, Review of the Implementation of the Convention and of decisions of the first session of the Conference of the Parties, FCCC/CP/1996/L.17 (18 July 1996).

129 See eg ibid para 8.

130 It is conceivable that the EU, even in the absence of second commitment period targets under the Kyoto Protocol, will be willing to subject itself to the accountability procedures of the Kyoto Protocol. If no second commitment period targets are negotiated under the Kyoto Protocol, it would not be possible in the case of a finding of non-compliance to apply a penalty rate to the targets for the next commitment period. Given current compliance data and trends, this is likely to be a problem primarily for Canada, and possibly for Japan. Canada has already indicated that it does not consider the consequences of non-compliance with the Kyoto Protocol targets to be legally binding as they have not been adopted as an amendment to the Kyoto Protocol by agreement of all Parties. See Court File Number T 1683-07, Federal Court, Between Friends of the Earth and The Minister of the Environment, Memorandum of Fact and Law, 5 (para 9).

131 The ICJ in the Temple of Preah Vihear case noted that where the emphasis is on the intention of the Parties, ‘the law prescribes no particular form, parties are free to choose what form they please, provided their intention clearly results from it.’ Temple of Preah Vihear (Cambodia v Thailand) [1961] ICJ Rep 31.

132 Nuclear Tests Case (Australia v France) [1974] ICJ Rep 253, 457. Note also that ‘[i]n these circumstances nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.’

133 Case Concerning Sections 301–310 of the Trade Act of 1974 (European Union v USA 1999).

134 See American Clean Energy and Security Act 2009 (Waxman Markey Bill) Discussion Draft, available at http://energycommerce.house.gov/index.php?option=com_content&task=view&id=1560.

135 The FCCC is an umbrella convention, and a whole host of protocols can be adopted under it.

136 The Marrakesh Accords are a set of COP decisions that, inter alia, operationalize the Kyoto Protocol's market mechanisms, and put into place the compliance system. See Report of the Conference of the Parties on its Seventh Session, held at Marrakesh from 29 October to 10 November 2001, Addendum, Part Two: Action Taken by the Conference of the Parties FCCC/CP/2001/13/Add.1 (21 January 2002).

137 The Waxman Markey Bill passed by the Congress, but yet to be tested at the Senate, proposes to reduce US GHG emissions by 17 per cent below 2005 levels by 2020. See (n 124). As GHG emissions in the US grew significantly between 1990 and 2005, this translates into a stabilization target or at best a few percent below 1990 by 2020. Kyoto, which the US signed and then rejected, required the US to take their emissions to 7 per cent below 1990 by 2012. The Waxman Markey target, albeit representative of a significant shift in US climate policy, is still far from ambitious in the context of the international negotiations.