The United Nations Framework Convention on Climate Change (UNFCCC), while a milestone for climate change governance, represents both advancement and compromise. Through its very existence, states have acknowledged that human activities, such as fossil-fuel based energy production and use, dangerously increase greenhouse gas emissions that contribute to climate change. Over time, the global climate change regime has evolved into a complex and technical area of international law. This article briefly surveys aspects of its evolution, objectives for Doha CoP 18/ CMP 8 and some lingering challenges
Framework for climate action
As a ‘framework’ for addressing climate change, the UNFCCC is constitutional in nature and establishes few detailed domestic obligations for Parties. It provides a structure, institutional mechanisms and Subsidiary Bodies for Implementation and Science and Technical Advice (SBI, SBSTA). It also attempts to embody numerous guiding principles of international environmental law such as intergenerational justice, common but differentiated responsibilities between developed and developing states, precaution and sustainable development. This is balanced with the principle that Parties should cooperate to promote a supportive and open international economic system, which would sustain economic growth and development, therefore improving capacity to address climate change.
The primary obligations for all Parties under the Convention, is to establish an inventory of emissions and to develop national or regional measures to mitigate climate change. Other individual and cooperative obligations relate to research, education and training, the provision of financial resources, technology transfer and national reporting on implementation measures. All activities should advance the ultimate goal of stabilising greenhouse gas concentrations in the atmosphere at a level that prevents dangerous anthropogenic (human) interference with the climate system. By all accounts, this goal remains to be achieved.
Regime evolution is a common feature to multilateral agreements, most of which expressly make provisions for such. The climate change regime is no different, and has evolved considerably in scope, scale and complexity through two distinct methods: a ‘big bang’ through the 1997 Kyoto Protocol, and incrementally through ad hoc working groups and CoP decisions.
Unlike the Convention, the Protocol prescribes legally binding quantified emission limitation and reduction targets for Annex I (developed) Parties. The Protocol’s collective goal is to reduce overall global greenhouse gas emissions to at least 5% below 1990 levels during the first commitment period of 2008–2012. To achieve this target, Annex I Parties are legally obliged to implement domestic policies, but have discretion over policy choice. Particularly innovative is the Protocol’s ‘flexibility’ or market mechanisms of joint implementation, clean development mechanism and emissions trading (the details of which were fleshed out in the 2001 Marrakesh Accords). Market mechanisms were established to assist Annex I Parties achieve their binding obligations through cooperation with developing states, whose obligations are broadly limited to sustainable development—an on-going point of contention for some developed states.
Structurally, regime negotiations have developed along ‘two-tracks’—one under the Convention, one under the Protocol. The first, commencing in 2005, was to negotiate a second commitment period under the Protocol (establishing the Ad Hoc Working Group on Annex I Parties’ Further Commitments under the Kyoto Protocol (AWG-KP). The second, commencing in 2007, was to negotiate long-term issues and ‘deep cuts’ in emissions through a post-2012 framework (establishing the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA) through the Bali Action Plan). Both of these groups are set, hopefully, for final determination at Doha CoP 18/ CMP 8.
In 2009, Parties politically agreed through the Copenhagen Accord that global temperature increases must stay below 2°C. However, there remains an ‘emission gap’, or chasm, of 9–12 gigatonnes of carbon dioxide equivalent between the emissions reduction pledges made since Copenhagen and Cancun and those necessary to scientifically achieve this goal. This gap remains despite various funding mechanisms being established to support an increased number and depth of pledges. Much depends on the new Ad Hoc Working Group on the Durban Platform for Enhanced Action (AWG-ADP), established in 2011, to agree by 2015 a new global platform with ‘legal force’, applicable to all countries, to enhance ambition and action on emissions reductions. This is to enter into force by 2020.
The regime’s evolution demonstrate its deepening, broadening and improved integration, as suggested by Daniel Bodansky, and that the original country groupings do not reflect current circumstances.
Objectives and challenges
There are numerous objectives for Doha CoP 18/ CMP 8. In relation to the subsidiary bodies under the Convention and Protocol, Parties are to agree and finalise the AWG-LCA and AWG-KP and to demonstrate progress in the AWG-ADP. The goal for the first two objectives is to provide a draft text for adoption by the CoP, after which time the bodies will dissolve. Judging by the provisional agendas and annotations, negotiations for the AWG-LCA will be challenging and cover: shared vision for emission peaking and rapid reduction; mitigation action for developed and developing countries including REDD+ and new market mechanisms; sectoral approaches; response measures; adaptation; and the old chestnuts of technology and finance transfer, capacity building support, equity and common but differentiated responsibility. It is about time that these chestnuts are roasted once and for all.
It seems likely that a second Protocol commitment period, commencing 1 January 2013, will be proposed by the AWG-KP and agreed by CoP 18. But the major hurdles in getting there include agreement on its legal form, the duration of the second commitment period—five or eight years—and rules about ‘carry-over’ credits. Some countries, such as Australia, have publicly announced that they will sign up only to an eight-year commitment period. Additionally, how it will become operative by the time required has not yet been determined.
As for the AWG-ADP, it is imperative that progress is demonstrated to the international community. The legal and political significance of language choice, and concepts such as vision, ambition and incentives to increase mitigation will be in the wings. However, the next two weeks need to result in a plan to substantively address these matters during 2013. Importantly, the Durban Platform does not necessarily advocate a space to begin climate negotiations afresh. There have been decades of excruciating negotiations and progress that will inform its contours and content.
Given the regime goals and the magnitude of necessary global restructuring, it is understandable that much regime progress has been incremental. Whatever one’s opinion about the negotiations, it is unequivocal that the world is warming. The recent IEA World Energy Outlook 2012 emphasises this point, as does the World Bank report ‘Turn Down the Heat’, and no doubt so too will the forthcoming IPCC 5th Assessment Report. The regime may be imperfect, but it must go on. Quickly.