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THE DURBAN PLATFORM FOR ENHANCED ACTION AND THE FUTURE OF THE CLIMATE REGIME

Published online by Cambridge University Press:  06 June 2012

Lavanya Rajamani
Lavanya Rajamani
Affiliation:
Professor, Centre for Policy Research, New Delhi. Email: [email protected].
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Extract

The Durban Climate Conference,1 marked by tension, high drama and sleepless nights, agreed on a set of historic decisions under the climate regime 36 hours after the scheduled end of the conference. The climate regime—comprising the 1992 Framework Convention on Climate Change2 and its 1997 Kyoto Protocol,3 and decisions taken by Parties under these instruments—has been plagued in the last few years, in particular after the debacle at Copenhagen,4 by doubt and uncertainty. Doubt over its ability to meet climate goals, and uncertainty over its future, in particular that of the Kyoto Protocol. At Durban, Parties strengthened the climate regime with decisions to implement the 2010 Cancun Agreements,5 extend the beleaguered Kyoto Protocol, for a second commitment period,6 and launch a new process to negotiate a post-2020 climate regime.7 This new process, christened the Ad-Hoc Working Group on the Durban Platform for Enhanced Action, is intended to craft the agreement that will govern, regulate and incentivize the next generation of climate actions.

Type
Shorter Articles
Information
International & Comparative Law Quarterly , Volume 61 , Issue 2 , April 2012 , pp. 501 - 518
Copyright
Copyright © British Institute of International and Comparative Law 2012

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References

1 Seventeenth session of the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC) held at Durban from 28 November to 9 December 2011. Information about the COP and related documents <http://unfccc.int/meetings/durban_nov_2011/meeting/6245.php>.

2 United Nations Framework Convention on Climate Change, 29 May 1992, reprinted in 31 ILM 849 (1992) [hereinafter ‘FCCC’].

3 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, reprinted in 37 ILM 22 (1998) [hereinafter ‘Kyoto Protocol’].

4 The Copenhagen Conference, 2009, resulted in a non-binding Copenhagen Accord, Decision 2/ CP.15, ‘Copenhagen Accord’, in FCCC/CP/2009/11/Add.1 (30 March 2010) [hereinafter ‘Copenhagen Accord’]. Rajamani, L, ‘The Making and Unmaking of the Copenhagen Accord’ (2010) 59 ICLQ 824Google Scholar.

5 Draft decision -/CP.17, ‘Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’, advance unedited version <http://unfccc.int/files/meetings/durban_nov_2011/decisions/application/pdf/cop17_lcaoutcome.pdf> [hereinafter ‘Durban LCA Decision’]. The Cancun Agreements, 2010, comprise Decision 1/CP.16, ‘The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on long-term Cooperative Action under the Convention’, in FCCC/CP/2010/7/Add.1 (15 March 2011) [hereinafter ‘Cancun Agreements LCA’]; and, Decision 1/CMP.6, ‘The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its fifteenth session’, in FCCC/KP/CMP/2010/12/Add.1 (15 March 2011) [hereinafter ‘Cancun Agreements KP’]. See for an analysis of the Cancun Agreements, Rajamani, L, ‘The Cancun Climate Change Agreements: Reading the Text, Subtext and Tea Leaves’ (2011) 60 ICLQ 499–519CrossRefGoogle Scholar. See also Grubb, M, ‘Editorial: Cancun: the Art of the Possible’ (2011) 11 Climate Policy 847–50CrossRefGoogle Scholar.

6 Draft decision -/CMP.7, ‘Outcome of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its sixteenth session’, advance unedited version, para 1 <http://unfccc.int/files/meetings/durban_nov_2011/decisions/application/pdf/awgkp_outcome.pdf> [hereinafter ‘Durban KP Decision’].

7 Draft decision -/CP.17, ‘Establishment of an Ad Hoc Working Group on a Durban Platform for Enhanced Action, 2011’, advance unedited version <http://unfccc.int/2860.php> [hereinafter ‘The Durban Platform’].

8 See eg on the centrality of equity, Proposals by India for inclusion of additional agenda items in the provisional agenda of the seventeenth session of the Conference of the Parties, Note by the Secretariat, FCCC/CP/2011/INF.2/Add.1 (7 October 2011), Annex. See also Press Release, ‘PM Addresses 12th Delhi Sustainable Development Summit’, Prime Minister's Office, Press Information Bureau, 2 February 2012 <http://pib.nic.in/newsite/pmreleases.aspx?mincode=3>; Press Release, ‘Suo Moto Statement in Lok Sabha by Minister of State for Environment and Forests (I/C) on Durban Agreements’, 19 December 2011 <http://pib.nic.in/newsite/erelease.aspx?relid=78811>.

9 Credible information on actions taken by other countries fosters confidence and generates goodwill, which in turn leads to equitable and effective agreements. See Raustiala, K, ‘Compliance and Effectiveness in International Regulatory Cooperation’ (2000) 32 Case W Res J Int'l L 387Google Scholar; Ehrmann, M, ‘Procedures of Compliance Control in International Environmental Treaties’, (2002) 13 Colo J Int'l L 433–434Google Scholar; Hunger, I and Isla, N, ‘Confidence-Building Needs Transparency: An Analysis of the BTWC's Confidence-Building Measures’, United Nations Institute for Disarmament Research, 2006 <http://www.einiras.org/pub/details.cfm?lng=en&id=46978>Google Scholar.

10 Compilation of economy-wide emission reduction targets to be implemented by Parties included in Annex I to the Convention, Revised note by the secretariat, FCCC/SB/2011/INF.1/Rev.1 (7 June 2011); Compilation of information on nationally appropriate mitigation actions to be implemented by Parties not included in Annex I to the Convention, Note by the secretariat, FCCC/AWGLCA/2011/INF.1 (18 March 2011).

11 United Nations Environment Programme, Bridging the Emissions Gap – A UNEP Synthesis Report (United Nations Environment Programme, 2011)Google Scholar.

12 Decision 1/CP.13, ‘Bali Action Plan’, in FCCC/CP/2007/6/Add.1 (14 March 2008) [hereinafter ‘Bali Action Plan’]. For a detailed analysis of the Bali Action Plan, see Rajamani, L, ‘From Berlin to Bali and Beyond: Killing Kyoto Softly’ (2008) 57 ICLQ 909–39CrossRefGoogle Scholar.

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

14 On the legal status of COP decisions see, Brunnée, J, ‘COPing with Content, Law-Making under Multilateral Environmental Agreements’ (2002) 15 LJIL 1–52CrossRefGoogle Scholar. See for an analysis of legal form options, Rajamani, L, ‘Addressing the Post-Kyoto Stress Disorder’ (2009) 58 ICLQ 803–34CrossRefGoogle Scholar, and Bodansky, D, White Paper: Legal Form of a New Climate Agreement: Avenues and Options (Pew Center on Global Climate Change, Washington, April 2009)Google Scholar.

15 The AWG-LCA's mandate was renewed twice in successive COPs. See para 143–5, Cancun Agreements LCA, and Decision 1/CP. 15, ‘Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’, in FCCC/CP/2009/11/Add.1 (30 March 2010), para 2.

16 See eg Preambular recital 2, Cancun Agreements LCA, for a reflection of this.

17 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).

18 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).

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

20 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).

21 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).

22 Draft implementing agreement under the Convention prepared by the Government of the United States of America for adoption at the fifteenth session of the Conference of the Parties, Note by the secretariat, FCCC/CP/2009/7 (6 June 2009).

23 See Decision 1/CMP.1, ‘Consideration of commitments for subsequent periods for Parties included in Annex I to the Convention under Article 3, paragraph 9, of the Kyoto Protocol’, in FCCC/KP/CMP/2005/8/Add.1 (30 March 2006).

24 Russia and Japan have formally indicated their intention not to assume targets under the Kyoto Protocol's second commitment period. See Letter to Ms C Figueres, Executive Secretary of the UNFCC, from the Head of Roshydromet, National Climate Change Coordinator, The Russian Federation, 8 December 2010 <http://unfccc.int/files/meetings/cop_15/copenhagen_accord/application/pdf/russianfederation_cph10.pdf>; and, Letter to Ms C Figueres, Executive Secretary of the UNFCC, from the Japanese Ambassador for COP16 of the UNFCCC, 10 December 2010 <http://unfccc.int/files/meetings/ad_hoc_working_groups/kp/application/pdf/japan_awgkp15.pdf>; Canada has formally withdrawn from the Kyoto Protocol. See Canada: Withdrawal, Kyoto Protocol to the United Nations Framework Convention on Climate Change, C.N.796.2011.TREATIES-1 (Depositary Notification), 16 December 2011, <http://unfccc.int/files/kyoto_protocol/background/application/pdf/canada.pdf.pdf>.

25 The Copenhagen Accord prescribes 2°C as the temperature goal for the climate regime; the Cancun Agreements and Durban decisions provide avenues for further strengthening this goal to 1.5°C. See para 1, Copenhagen Accord, para 4, Cancun Agreements (LCA) and preambular recital 3, Section II.A, Durban LCA Decision.

26 Council of the European Union, Preparations for the 17th session of the Conference of the Parties (COP 17) to the United Nations Framework Convention on Climate Change (UNFCCC) and the 7th session of the Meeting of the Parties to the Kyoto Protocol (CMP 7) (Durban, South Africa 28 November – 9 December 2011), Council Conclusions, 3118th Environment Council meeting, Luxembourg, 10 October 2011 <http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/envir/125026.pdf>.

27 Art 3(9), Kyoto Protocol.

28 For information on the Fifth Assessment Report, see <http://www.ipcc.ch/activities/activities.shtml#.T0ZKHodA8qw>.

29 Para 138 and 139, Cancun Agreements LCA.

30 See eg Experts from BASIC countries, Equitable access to sustainable Development, Contribution to the Body of Scientific Knowledge – A Paper by Experts from BASIC Countries (2011) 4–21 <http://www.erc.uct.ac.za/Basic_Experts_Paper.pdf>.

31 In 2008, China's CO2 emissions constituted the highest share—24.01%—of the world's emissions. See data for Yearly Emissions for countries, Climate Analysis Indicators Tool (CAIT), World Resources Institute <http://cait.wri.org>.

32 Para 1, The Durban Platform.

33 See eg Algeria on behalf of the African Group in Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan, Submissions from Parties, FCCC/AWGLCA/2009/MISC.4 (Part I) (19 May 2009), 11. See also, Statement of Common Position, African Group, Group of Least Developed Countries and ALBA Group, 7 October 2011 <http://climate-justice.info/wp-content/uploads/2011/11/Statement-of-Common-Positions-Afr-LDC-ALBA-FINAL.pdf>. It is worth noting that although this distinction between commitments and actions came to be characterized as a ‘firewall’ after Bali, many developing countries source such a firewall to the FCCC. In conversation, JM Mauskar, Special Secretary, Ministry of Environment and Forests, India, and lead climate negotiator.

34 Para 2, The Durban Platform.

35 See Decision 1/CP.1, ‘Berlin Mandate: Review of Adequacy of Articles 4, paragraph 2, sub-paragraph (a) and (b) of the Convention, including proposals related to a Protocol and decisions on follow-up’, in Report of the Conference of the Parties on its First Session, held at Berlin from 28 March to 7 April 1995, Addendum, Part Two: Action Taken by the Conference of the Parties at its First Session, FCCC/CP/1995/7/Add.1 (6 June 1995) [hereinafter ‘The Berlin Mandate’].

36 Preambular recital 3, The Berlin Mandate.

37 Report of the Ad Hoc Group on the Berlin Mandate on the Work of its Third Session, held at Geneva from 5 to 8 March 1996, FCCC/AGBM/1996/5 (23 April 1996), and Ad Hoc Group on the Berlin Mandate, Possible Features of a Protocol or Another Legal Instrument, Institutional issues, Note by the secretariat, FCCC/AGBM/1996/4 (13 February 1996).

38 Art 15, FCCC.

39 Art 16, FCCC.

40 Art 17, FCCC.

41 See, Vidal, J and Harvey, F, ‘Durban climate deal struck after tense all-night session’, The Guardian (11 December 2011)Google Scholar; McCarthy, M, ‘11th-hour agreement in Durban sees Big Three legally bound to reduce carbon emissions’ The Independent (12 December 2011)Google Scholar.

42 Images of the ‘huddle’ and its participants <http://www.iisd.ca/climate/cop17/photoindex.html>.

43 Draft implementing agreement (n 22).

44 See, eg para 1(a), The Berlin Mandate and para 1(a), Bali Action Plan.

45 See, eg Submission of Australia, in Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan, Submissions from Parties, Addendum, Part I, FCCC/AWGLCA/2008/Misc.5/Add.2 (Part I) (10 December 2008), 73; Submission of Japan, in Ideas and proposals on the elements contained in paragraph 1, of the Bali Action Plan, Submissions from Parties, FCCC/AWGLCA/2008/MISC.5 (27 October 2008), 41; and Submission of the United States, in Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan, Submissions from Parties, FCCC/AWGLCA/2008/MISC.5 (27 October 2008), 106. It is worth noting that several international tribunals have approached treaties as ‘living instruments’ and applied the ‘evolutionary’ method of treaty interpretation. See generally for a discussion of these, Van Damme, I, Treaty Interpretation by the WTO Appellate Body (OUP, Oxford, 2009)CrossRefGoogle Scholar; Letsas, G, ‘Strasbourg's Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21 EJIL 509–41CrossRefGoogle Scholar.

46 The FCCC permits non-Annex I Parties to graduate to Annex I, through amendment to the Annexes, should be wish to do so. See Art 16, FCCC. Thus far the only cases of such graduation have been Malta and Cyprus (yet to enter into force), and both have sought such graduation as a consequence of their joining the EU.

47 See, eg Todd Stern, the US Climate Change Envoy commented after Durban, ‘[f]undamentally, we got the kind of symmetry we have been focused on since the beginning of the Obama administration.' See Friedman, L and Chemnick, J, ‘Durban talks create ‘‘platform’’ for new climate treaty that could include all nations’, ClimateWire, 12 December 2011Google Scholar. See also, Reaction of Connie Hedegaard, EU climate commissioner, after Durban: ‘The big thing is that now all big economies, all parties have to commit in the future in a legal way and that's what we came here for’ in ‘Reaction to UN climate deal’, BBC News Science and Environment, 11 December 2011 <http://www.bbc.co.uk/news/science-environment-16129762>.

48 Preambular recital 1, The Durban Platform.

49 Preambular recital 3, The Durban Platform.

50 Para 7, The Durban Platform.

51 Para 37, Cancun Agreements LCA.

52 Para 48, ibid. See also para 51 that requests the Secretariat to organize workshops to understand the ‘diversity of mitigation actions’ submitted, noting ‘different national circumstances and respective capabilities of developing country Parties’.

53 See for the progress of the work on mitigation ambition during Durban, Update of the amalgamation of draft texts in preparation of a comprehensive and balanced outcome to be presented to the Conference of the Parties for adoption at its seventeenth session, Note by the Chair, FCCC/AWGLCA/2011/CRP.38 (7 December 2011), ch II, para 7 and Amalgamation of draft texts in preparation of a comprehensive and balanced outcome to be presented to the Conference of the Parties for adoption at its seventeenth session, Note by the Chair, FCCC/AWGLCA/2011/CRP.37 (3 December 2011), ch 11, para 7. For the work on mitigation ambition in the lead-up to Durban see Work of the AWG-LCA Contact Group, Agenda item 3.2.1, Nationally appropriate mitigation commitments or actions by developed country Parties, Discussion on matters relating to paras 36–8 of the Cancun Agreements, Co-facilitator's summary, 14 October 2011.

54 Ghosh, P and Dasgupta, C, ‘Smoke and Mirrors’ Financial Express (14 December 2011)Google Scholar; Suo Moto Statement in Lok Sabha by Minister of State for Environment and Forests (n 8).

55 For a detailed analysis see L Rajamani, ‘The Reach and Limits of the Principle of Common but Differentiated Responsibilities and Respective Capabilities in the Climate Change Regime’, in NK Dubash, (ed) Handbook of Climate Change and India: Development, Politics and Governance (OUP, New Delhi, 2011) 118–129. See also Birnie, P, Boyle, A and Redgwell, C, International Law and the Environment (3rd edn, OUP, Oxford, 2009) 132–7Google Scholar. It is worth noting that there are divergences even among BASIC countries on how this principle is to be operationalized. See generally Expert from BASIC countries (n 30).

56 Para 6, The Durban Platform.

57 Para 4 and 138–40, Cancun Agreements LCA.

58 Para 157–67, Durban LCA Decision.

59 Para 160, ibid.

60 These five issue areas identified in the Bali Action Plan as meriting further cooperation on, have been labelled by Parties as the ‘pillars’ of the Bali Action Plan.

61 See L Rajamani (n 5) 512–13.

62 Para 4, Durban LCA Decision.

63 Proposals by India for inclusion of additional agenda items (n 8).

64 Term first cited in para 6, Cancun Agreements LCA. See also Experts from BASIC countries (n 30).

65 Paras 3 and 4, The Durban Platform.

66 ‘China sets conditions on binding climate change commitment after 2020’ Xinhuanet News (6 December 2011) <http://news.xinhuanet.com/english/china/2011-12/06/c_131290906.htm>; M Hart, ‘Reading China's Climate Change Tea Leaves’, Centre for American Progress (8 December 2011) <http://www.americanprogress.org/issues/2011/12/china_climate_change_durban.html>; A Hsu, ‘Propelling the Durban climate talks – China announces willingness to consider legally binding commitments post-2020’, ChinaFAQs, The Network for Climate and Energy Information, 6 December 2011 <http://www.chinafaqs.org/blog-posts/propelling-durban-climate-talks-china-announces-willingness-consider-legally-binding-comm>.

67 See text of a letter from George W Bush, the President of the United States, to Senators Hagel, Helms, Craig and Roberts (13 March 2001).

68 Para 3, The Durban Platform.

69 Para 5, ibid.

70 Para 7, ibid.

71 Preambular recital 2, ibid.

72 Para 8, ibid.

73 Para 7, ibid.

74 Para 1, Durban KP Decision.

75 Para 1, ibid.

76 Para 5, ibid.

77 Para 7, ibid.

78 Para 1, 5 and 7, ibid.

79 Annex, ibid. It is worth noting that all the conditions and qualifications that Parties had entered in relation to their pledges remain intact.

80 Para 4, Durban KP Decision.

81 Art 3, Kyoto Protocol. Some do not consider the Kyoto ‘at least 5 per cent’ to be an overall reduction goal in the sense of a negotiated number, but rather an aggregation of individual commitments listed in Kyoto Annex B. In conversation, Michael Zammit Cutajar, former Executive Secretary, UNFCCC Secretariat.

82 Preambular recital 9, Durban KP Decision.

83 Para 10, ibid.

84 Joint Statement issued at the Conclusion of the 10th BASIC Ministerial meeting on Climate Change, New Delhi, 13–14 February 2012 <http://www.moef.nic.in/downloads/public-information/10th-BASIC-Meeting-Delhi-Joint-Statement.pdf>.

85 Para 5, Cancun Agreements LCA.

86 Para 6, ibid.

87 Para 1 and 2, Durban LCA Decision.

88 Para 4, ibid.

89 Para 36, Cancun Agreements LCA.

90 Para 49, ibid.

91 See Compilation of economy-wide emission reduction targets to be implemented by Parties included in Annex I to the Convention (n 10) and Compilation of information on nationally appropriate mitigation actions to be implemented by Parties not included in Annex I to the Convention (n 10).

92 Para 5, Durban LCA Decision.

93 Para 33, ibid.

94 Preambular recital 5, Section II.A and Preambular recital 5, section II.B, ibid.

95 Para 40 and 60, Cancun Agreements LCA; See also, para 12 and Annex I (for Parties included in Annex I to the Convention) and para 39 and Annex III (for Parties not included in Annex I to the Convention), Durban LCA Decision.

96 Para 44 and 46(d), Cancun Agreements LCA; para 24 and Annex II, Durban LCA Decision.

97 Para 63 Cancun Agreements LCA; para 58, and Annex IV, Durban LCA Decision.

98 Para 3(b) and 8–12, Annex II, Durban LCA Decision.

99 Para 3(b), Annex IV, ibid.

100 Parties' reports are required to include information on their progress in meeting their targets and actions. The biennial reporting guidelines for developed country Parties require Parties to report on progress in achievement of quantified economy-wide emission reduction targets. The biennial update reporting guidelines for non-Annex I Parties require Parties to report on progress in the implementation of their mitigation actions. See para 6, Annex I and para 12, Annex III, ibid.

101 Para 4, Cancun Agreements LCA; preambular recital 3, section II.A (developed country Parties) and preambular recital 2, section II.B (developing country Parties), Durban LCA Decision.

102 Preambular recital 4, section II.A (developed country Parties) and preambular recital 3, section II.B (developing country Parties), Durban LCA Decision. See also, Preambular recital 2, The Durban Platform.

103 Preambular recital 6, section II.A, Durban LCA Decision.

104 Preambular recital 5, section II.B, ibid. See generally for a discussion on facilitating compliance, Redgwell, C, ‘Facilitation of Compliance’, in Brunnée, J, Doelle, M and Rajamani, L (eds), Promoting Compliance in An Evolving Climate Regime (CUP, Cambridge, 2011) 177–93CrossRefGoogle Scholar.

105 Draft decision -/CP.17, ‘Green Climate Fund – report of the Transitional Committee’, advanced unedited version <http://unfccc.int/files/meetings/durban_nov_2011/decisions/application/pdf/cop17_gcf.pdf>.

106 Para 102, Cancun Agreements LCA.

107 Para 10, Copenhagen Accord.

108 Para 29 and 30, Annex IV, Draft decision -/CP.17, Green Climate Fund (n 105).

109 Germany has pledged €40 million, see Statement of the German Federal Minister of the Environment, Nature Conservation and Nuclear Safety Dr. Norbert Röttgen, High Level Segment of the UNFCCC 2011 COP 17 and CMP 7, Durban (07 December 2011) <http://www.bmu.de/english/climate/climate_conferences/17th_conference_durban/doc/pdf/48122.pdf>; and Denmark has pledged nearly €15m, see ‘Money starts trickling into Green Climate Fund’, ACT Alliance (8 December 2011) <http://www.actalliance.org/stories/money-starts-flowing-into-green-climate-fund>.

110 Data for 1970–2008: EU (27) – 19.94%; Australia – 1.27%; Norway – 0.15%; New Zealand – 0.11%; Switzerland – 0.21%. See Climate Analysis Indicators Tool (CAIT) (n 31).

111 Data for Concentrations of GHG Emissions (1850–2008): EU (27) – 23.81%; Australia – 1.18%; Norway – 0.16%; New Zealand – 0.12%; Switzerland – 0.21%, Climate Analysis Indicators Tool (CAIT), ibid.

112 Para 7, The Durban Platform.

113 Para 139(b), Cancun Agreements LCA; para 158, Durban LCA Decision.

114 Para 157, Durban LCA Decision.

115 Para 159, ibid.

116 There have been numerous efforts in the negotiations by Australia, Japan, the US and others to argue for differentiation between developing countries based on ‘objective’ criteria such as GDP per capita, relative rates of economic and population growth, stage of economic development, etc. These efforts were not fruitful. Submissions of Parties (n 45).

117 See for a set of criteria identified by experts from BASIC countries, Experts from BASIC countries (n 30) 12–15.

118 See eg Müller, B, Höhne, N and Ellermann, C, ‘Differentiating (Historic) Responsibilities for Climate Change’ (2009) 9 Climate Policy 593–611CrossRefGoogle Scholar.

119 Summary of the Third Session of the Ad Hoc Working Group under the Convention and Sixth Session (Part one) of the Ad Hoc Working Group under the Kyoto Protocol: 21–7 August 2008, (2008) 12(383) Earth Negotiations Bulletin 1, 4 <http://www.iisd.ca/download/pdf/enb12383e.pdf>.

120 Bali Action Plan, Copenhagen Accord, Cancun Agreements LCA and Durban LCA Decision.

121 Bali Action Plan and Copenhagen Accord.

122 Para 60(c), Cancun Agreements LCA and para 41(a), Durban LCA Decision.

123 Para 41 (a), Durban LCA Decision.

124 Para 58 (d), ibid.

125 See pledges of BASIC countries in Compilation of information on nationally appropriate mitigation actions to be implemented by Parties not included in Annex I to the Convention (n 10).

126 Kartha, S and Erickson, P, Comparison of Annex 1 and non-Annex 1 pledges under the Cancun Agreements (Stockholm Environment Institute, June 2011)Google Scholar.