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THE CANCUN CLIMATE AGREEMENTS: READING THE TEXT, SUBTEXT AND TEA LEAVES

Published online by Cambridge University Press:  12 May 2011

Lavanya Rajamani
Lavanya Rajamani
Affiliation:
Professor, International Law, Centre for Policy Research, New Delhi.
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Extract

The Cancun Agreements, hailed by Patricia Espinosa, Mexican Secretary of Foreign Affairs and President of the Cancun Conference, as launching ‘a new era of international cooperation on climate change,’1 were concluded on 11 December 2010 to widespread acclaim. These agreements that will guide the climate negotiations for the foreseeable future represent another twist in the tale of the ongoing negotiations.

Type
Shorter Articles
Information
International & Comparative Law Quarterly , Volume 60 , Issue 2 , April 2011 , pp. 499 - 519
Copyright
Copyright © 2011 British Institute of International and Comparative Law

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References

1 See On Demand Webcast, COP-16, resumed 9th meeting (10 December 2010), available at, http://webcast.cc2010.mx/grid_en.html.

2 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 31 ILM 849 (hereinafter FCCC).

3 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).

4 Art 3(9), Kyoto Protocol. See for an overview of the climate regime P Birnie, A Boyle and C Redgwell, International Law and the Environment (CUP, Cambridge, 2009) 356–378.

5 Decision 1/CMP.1, Consideration of Commitments for Subsequent Periods f or Parties Included in Annex I to the Convention under Article 3, Para 9 of the Kyoto Protocol, FCCC/KP/CMP/2005/8/Add.1 (2006).

6 Decision 1/CP.13, Bali Action Plan, in 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, FCCC/CP/2007/6/Add.1 (14 March 2008) (hereinafter Bali Action Plan).

7 Para 1, Bali Action Plan.

8 Decision 2/CP.15, Copenhagen Accord, in 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, FCCC/CP/2009/11/Add.1 (30 March 2010) (hereinafter ‘Copenhagen Accord’). See generally Bodansky, D, ‘The Copenhagen Climate Change Conference’: A Postmortem’ (2010) 104 AJIL 2 230CrossRefGoogle Scholar, and Rajamani, L, ‘The Making and Unmaking of the Copenhagen Accord’ (2010) 59 ICLQ 3 824Google Scholar.

9 The Bolivarian Alliance consists of Bolivia, Cuba, Ecuador, Nicaragua and Venezuela.

10 FCCC Secretariat, Notification to Parties, Clarification relating to the Notification of 18 January 2010, 25 January 2010.

11 For a list of countries that have associated with the Copenhagen Accord, and inscribed in its appendices see, http://unfccc.int/home/items/5262.php.

12 See eg R Stavins, ‘What Happened (And Why): An Assessment of the Cancun Agreements’ (13 December 2010) available at http://belfercenter.ksg.harvard.edu/analysis/stavins/?p=876.

13 Decision 1/CP.16, ‘The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on long-term Cooperative Action under the Convention,’ in Report of the Conference of the Parties on its sixteenth session, Addendum, Part Two: Action taken by the Conference of the Parties, FCCC/CP/2010/7/Add.1 (15 March 2011) (hereinafter LCA Outcome Decision).

14 Decision 1/CMP.6, ‘The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its fifteenth session,’ in 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 serving as the meeting of the Parties to the Kyoto Protocol, FCCC/KP/CMP/2010/12/Add.1 (15 March 2011) (hereinafter Kyoto Outcome Decision).

15 Para 4, LCA Outcome Decision.

16 See G8 Leaders Declaration: Responsible Leadership for a Sustainable Future, L'Aquila, Italy, 9 July 2009, para 65.

17 Paras 5 and 6, LCA Outcome Decision.

18 See eg Jairam Ramesh, Indian Minister of State for Environment and Forests, Letter to the Members of Parliament, Cancun Agreements, (20 December 2010) on file with the author, for a reflection of this view.

19 Drawn from art 4(7), FCCC.

20 Para 6, LCA Outcome Decision.

21 See Joint Statement Issued at the Conclusion of the Fifth BASIC Ministerial Meeting on Climate Change, Tianjin, China, (11 October 2010) and (n 18).

22 See eg Submission by India, Mechanisms Pursuant to art 6, 12, and 17 of the Kyoto Protocol, Additional Submissions by Parties, FCCC/SB/2000/MISC.4/Add.2/Rev.1 (14 September 2000) 42–43.

23 Paras 4 and 138–140, LCA Outcome Decision.

24 UNEP, The Emissions Gap Report: Are the Copenhagen Accord Pledges Sufficient to Limit Global Warming to 2°C or 1.5°C? (November 2010) 43.

25 See eg Preparations for COP 16 and CMP-6, Council of the European Union, Conclusions, 14957/10, 14 October 2010; and COP-16 Plenary Statement of US Special Envoy for Climate Change, Todd Stern, High Level Segment of COP-16 and CMP-6, 9 December 2010.

26 See (n 10).

27 Paras 36 and 49, LCA Outcome Decision.

28 Footnote 4 and 5 to paras 36 and 49 respectively, LCA Outcome Decision.

29 Para 3, Kyoto Outcome Decision.

30 ‘Taking note’ of documents to signal acknowledgment is not unique to the FCCC process. See eg G.A. Res 56/83, Responsibility of States for Internationally Wrongful Acts, 28 January 2002. It is unusual, however, to take note of non-existent documents.

31 See eg Submission by the United States of America, Ideas and proposals on the elements contained in Para 1 of the Bali Action Plan, Submissions from Parties, Addendum, Part II, in FCCC/AWGLCA/2008/MISC.5/Add.2 (Part II) (10 December 2008) at 71 (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’).

32 See Submission by the United States of America, Additional views on which the Chair may draw in preparing text to facilitate negotiations among Parties, Submissions from Parties, FCCC/AWGLCA/2010/MISC.2 (30 April 2010) 79.

33 S.15. A bill to prohibit the regulation of carbon dioxide emissions in the United States until China, India and Russia implement similar reductions, 112th Congress, 1st session, 25 January 2011. This bill is unlikely to survive, however, it does reflect the diversity of interests the United States has to take into account in framing its negotiating stance.

34 Para 4, Copenhagen Accord.

35 Para 5, Copenhagen Accord.

36 Paras 36 and 49, LCA Outcome Decision and Para 3, Kyoto Outcome Decision.

37 This is evident from the chosen document numbers, for developed countries FCCC/SB/2011/INF.1 (a Subsidiary Bodies information document), and for developing countries, FCCC/AWGLCA/2011/INF.1 (an AWG-LCA information document).

38 Art 3, Kyoto Protocol.

39 Annex B, Kyoto Protocol, for instance, contains a +8 per cent commitment, for Australia, a limitation on the growth of GHGs.

40 Annex B, Kyoto Protocol, for instance, contains stabilization commitments for Russia, Ukraine and New Zealand.

41 See Vidal, J, ‘Cancun Climate Change Summit: Japan refuses to extend Kyoto Protocol’ The Guardian (1 December 2010Google Scholar) and Goldenberg, S, ‘Cancun Climate Change Conference: Russia will not renew Kyoto Protocol’ The Guardian (10 December 2010)Google Scholar.

42 Para 3, Kyoto Outcome Decision and Para 36, LCA Outcome Decision.

43 Art 15, Kyoto Protocol and arts 9 and 10, FCCC.

44 Art 15(2), Kyoto Protocol.

45 Decisions ‘taking note’ of such an information document would not disturb rights, interests and obligations of non-Parties, and so may be permissible, but decisions that seek to create rights and obligations, to the extent that these can be in a COP decision, for non-Parties will, unless there is explicit agreement from the non-Party state, be impermissible. By extension from art 35, Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 8 ILM 679.

46 Para 5, Kyoto Outcome Decision.

47 Para 37, LCA Outcome Decision.

48 Footnote to para 3, Kyoto Outcome Decision.

49 Art 21(7), Kyoto Protocol.

50 Art 4(1), FCCC.

51 Decision 1/CP.1, The Berlin Mandate, in Report of the Conference of Parties on its first session, FCCC/CP/1995/7/Add.1 (6 June 1995).

52 Para 1(b)(ii), Bali Action Plan.

53 Para 5, Copenhagen Accord.

54 Para 48, LCA Outcome Decision.

55 Paras 4 and 5, Copenhagen Accord.

56 Para 52, LCA Outcome Decision.

57 Para 49, LCA Outcome Decision.

58 Para 50, LCA Outcome Decision.

59 Para 53, LCA Outcome Decision.

60 ibid.

61 Para 59, LCA Outcome Decision.

62 Compare para 36, with paras 49 and 59 read together, LCA Outcome Decision.

63 Para 63, LCA Outcome Decision.

64 Para 143, LCA Outcome Decision.

65 See Letter from South Africa, 29 January 2010, all letters from states in relation to the Copenhagen Accord, 2009, are available at, http://unfccc.int/home/items/5265.php.

66 See eg List of Participants, Part 1-3, FCCC/CP/2010/INF.1 (Part 1–3)(10 December 2010).

67 See eg Compilation of pledges for emission reductions and related assumptions provided by Parties to date and the associated emission reductions: update July 2010, FCCC/AWG/KP/2010/Inf.2/Rev.1 (2010). ‘Miscellaneous’ documents have been used in the past. See eg Information on possible quantified emission limitation and reduction objectives from Annex I Parties, FCCC/KP/A WG/2009/MISC.15 (19 August 2009).

68 ibid.

69 See eg Letters from China, 28 January 2010, and India, 30 January 2010. These letters do not contain any references to the Copenhagen Accord, and state that the communications are for ‘information to the UNFCCC Parties’ and made in accordance with relevant articles of the FCCC.

70 See Rajamani (n 8).

71 See ibid.

72 See eg Letters by Brazil, 29 January 2010, China, 28 January 2010, India, 30 January 2010, and South Africa, 29 January 2010.

73 See eg Letter by South Africa, 29 January 2010.

74 See eg Letters by the EU, 28 January 2010, New Zealand, 31 January 2010, and Norway, 29 January 2010.

75 See Letter by Russia, 29 January 2010.

76 See Letter by the US, 28 January 2010.

77 See Letter by Canada, tying their target to enacted legislation in the US, 29 January 2010.

78 See (n 24).

79 Para 37, LCA Outcome Decision.

80 Para 4, Kyoto Outcome Decision.

81 Introductory para 6, Kyoto Outcome Decision.

82 Para 40, LCA Outcome Decision.

83 Paras 41, 42 and 46, LCA Outcome Decision.

84 Arts 5, 7 and 8, Kyoto Protocol.

85 Para 43, LCA Outcome Decision.

86 Compare para 43, LCA Outcome Decision and art 5(1), Kyoto Protocol.

87 Para 44, LCA Outcome Decision.

88 Para 1(b)(i), Bali Action Plan.

89 Para 44, LCA Outcome Decision.

90 ibid.

91 Para 46(d), LCA Outcome Decision.

92 Para 60, LCA Outcome Decision.

93 ibid.

94 Art 12(5), FCCC, 1992, read with Decision 8/CP.11, Submission of second and, where appropriate, third national communications from Parties not included in Annex I to the Convention, FCCC/CP/2005/5/Add.1 (30 March 2006) 17.

95 Art 12, FCCC, 1992, read with relevant COP decisions, including Decision 10/CP.13, in FCCC/CP/2007/6/Add.1 (14 March 2008) at 44.

96 At last count, of the 153 non-Annex I Parties, 140 had submitted their initial national communications, 40 their second national communications, and a handful, their third and fourth national communications. Information, and full text of national communications available at, http://unfccc.int/national_reports/non-annex_i_natcom/submitted_natcom/items/653.php.

97 Paras 61 and 62, LCA Outcome Decision.

98 Para 63, LCA Outcome Decision.

99 Para 5, Copenhagen Accord.

100 Para 63, LCA Outcome Decision.

101 Paras 63 and 64, LCA Outcome Decision.

102 Para 63, LCA Outcome Decision.

103 Admittedly existing review processes for national communications and GHG inventories from developed countries are more rigorous than those for developing countries. Much of the rigour comes from Kyoto Protocol requirements, however, and in any case this does not address the need for comparable outputs from comparable processes under the Cancun Agreements.

104 The reference to ‘SB’ in the document number in para 36 of the LCA Outcome Decision and para 3 of the Kyoto Outcome Decision suggests that these documents will be considered in the Subsidiary Bodies. At least some part of this task falls within the mandate of the SBI. See arts 9 and 10, FCCC.

105 Paras 44 and 63, LCA Outcome Decision.

106 Paras 40 and 60, LCA Outcome Decision. National communications from Parties fall within the mandate of the SBI. See art 10, FCCC.

107 Art 10(2)(a), FCCC.

108 Art 10(2)(b), read with art 4(2)(d), FCCC.

109 Discussed in detail in Rajamani (n 8). See also Rajamani, L, ‘From Berlin to Bali and Beyond: Killing Kyoto Softly’ (2008) 57 ICLQ 3 909–939CrossRefGoogle Scholar.

110 Para 83, LCA Outcome Decision.

111 Para 1, Kyoto Outcome Decision.

112 See (n 5).

113 Art 20, Kyoto Protocol.

114 See generally Legal considerations relating to a possible gap between the first and subsequent commitment periods, Note by the Secretariat, FCCC/KP/AWG/2010/10 (20 July 2010).

115 Art 21 (2), Kyoto Protocol.

116 See eg Proposal from Grenada for amendments to the Kyoto Protocol, FCCC/KP/CMP/2010/3 (2 June 2010).

117 See text accompanying (n 84–86).

118 Para 6(b), Kyoto Outcome Decision.

119 Para 83, LCA Outcome Decision.

120 Para 1, LCA Outcome Decision.

121 Introductory para 2 to s III.A, LCA Outcome Decision.

122 Paras 49 and 59, LCA Outcome Decision.

123 For a discussion of issues relating to legal form see Rajamani, L, ‘Addressing the Post-Kyoto Stress Disorder: Reflections on the Emerging Legal Architecture of the Climate Regime’ (2009) 58 ICLQ 3 803–834CrossRefGoogle Scholar; and, Werksman, J, ‘Legal Symmetry and Legal Differentiation under a Future Deal on Climate’ (2010) 10 Climate Policy 6 672–677CrossRefGoogle Scholar.

124 Draft protocol to the Convention prepared by the Government of Japan for adoption at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/3 (13 May 2009).

125 Draft protocol to the Convention prepared by the Government of Australia for adoption at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/5 (6 June 2009).

126 Draft protocol to the Convention presented by the Government of Tuvalu under Article 17 of the Convention, FCCC/CP/2009/4 (5 June 2009).

127 Draft protocol to the Convention prepared by the Government of Costa Rica for adoption at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/6 (8 June 2009).

128 Proposed protocol to the Convention submitted by Grenada for adoption at the sixteenth session of the Conference of the Parties, FCCC/CP/2010/3 (2 June 2010).

129 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, FCCC/CP/2009/7 (6 June 2009).

130 See (n 18).

131 Introductory para 2, LCA Outcome Decision.

132 Para 145, LCA Outcome Decision.

133 Andreas Carlgren, Swedish Minister for Environment, facilitating the ‘global goal’ negotiations.

134 See On Demand Webcast, AWG-LCA 13, second meeting, (10 December 2010), webcasts of all official meetings held at Cancun are available at, http://webcast.cc2010.mx/grid_en.html.

135 See also Submissions from Bolivia, 21 February 2011, available at, http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php

136 Art 7(2)(k), FCCC.

137 See eg art 15(3), FCCC and art 20(3), Kyoto Protocol.

138 Parties have yet to agree on Rule 42 (Voting), of the draft Rules of Procedure, which have been applied, with the exception of Rule 42, since 1996. In the absence of agreement, decisions are taken by consensus. See Draft Rules of Procedure of the Conference of the Parties and its Subsidiary Bodies in FCCC/CP/1996/2 (22 May 1996). Consensus has been identified as the preferred mode of decision-making in Articles 15(3), and 7(2)(k), FCCC, and arts 13(5), 20(3) and 21(4), Kyoto Protocol.

139 See generally for the evolution of consensus-based decision-making Buzan, Barry, ‘Negotiating By Consensus’ (1981) 75 AJIL 324CrossRefGoogle Scholar; MJ Peterson, The General Assembly in World Politics (Allen & Unwin, London, 1986) 81–90; and, A Boyle and C Chinkin, The Making of International Law (OUP, Oxford, 2007) 157–160.

140 See eg art 161(8)(e), United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397; para II(A)2, Rules of Procedure of the Organization for Security and Co-operation in Europe, 1 November 2006, MC.DOC/1/06; Footnote 1 to art 2.4, Dispute Settlement Rules: Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, reprinted in 33 ILM 1226 (1994); Art 11, Rules of Procedure of the Organization of the Black Sea Economic Cooperation, 22 October 2007. See also definition offered in Vignes, Daniel, ‘Will the Third Conference on the Law of the Sea Work According to Consensus Rules?’ 69 AJIL 119, 119–222 (1975)CrossRefGoogle Scholar.

141 I am grateful to Michael Zammit Cutajar for these examples.

142 See Report of the Conference of the Parties on its Second Session, held at Geneva, from 8 to 19 July 1996, FCCC/CP/1996/15 (29 October 1996).

143 See (n 1).

144 The rule of ‘consensus minus one’, thus far applied, is designed to exclude a party that is in violation of its obligations. See eg Prague Document on Further Development of Commission on Security and Cooperation in Europe (CSCE) Institutions and Structures, 2nd CSCE Council, Prague, 30–31 January 1992 (deciding that in cases of a State's ‘clear, gross and uncorrected violation’ of CSCE commitments, decisions could be taken without the consent of the State concerned). A similar rule was applied in the Montreal Protocol process in relation to Russia's non-compliance. See Report of the Seventh Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, Vienna, 5–7 December 1995, UNEP/OzL.Pro.7/12, paras 130–132. See Werksman, J, ‘Compliance and Transition: Russia's Non-Compliance Tests the Ozone Regime’ (1996) 56 Zeitschrift fur auslandisches offentliches Recht und Volkerrecht 750Google Scholar.

145 In conversation, JM Mauskar, Indian delegation, 21 January 2011.

146 Sohn, LB, ‘United National Decision-Making: Confrontation or Consensus?’ (1974) 1 Harv Int'l LJ 438Google Scholar.

147 ibid.

148 See On Demand Webcast, CMP-6, resumed 10th meeting (10 December 2010), available at, http://webcast.cc2010.mx/grid_en.html.

149 The President is empowered to ‘announce’ decisions not interpret or take them, and she remains under the authority of the COP in the exercise of her functions. Rule 23, Draft Rules of procedure, as applied (n 138).

150 See (n 1).

151 See (n 134).

152 ibid.

153 Presiding officers are authorized to close debates, Rule 23(2) Draft Rules of procedure, as applied (n 138).

154 See (n 146).

155 ibid.

156 See (n 1).

157 See (n 148).

158 On Demand Webcast, AWG-KP-15, second meeting (10 December 2010), available at, http://webcast.cc2010.mx/grid_en.html.

159 Report of the Conference of the Parties on its sixteenth session, Part I: Proceedings, FCCC/CP/2010/7 (15 March 2011) at 14.

160 The enabling clause in the relevant treaty may authorize a COP decision to be binding, but in its absence formally COP decisions are not legally binding, see Brunnée, J‘COPing with Consent: Law-Making under Multilateral Environmental Agreements,’ (2002) 15 LJIL 1CrossRefGoogle Scholar.

161 ibid.

162 Art 14(2), FCCC, 1992, permits states to accept the jurisdiction of the ICJ in relation to disputes. Few states have done so.

163 See (n 146).

164 See Woods, N, ‘Good Governance in International Organizations’ (1999) 5 Global Governance 1Google Scholar, for examples in other regimes.

165 I am grateful to Geir Ulfstein for this point.