Chris Wold, David Hunter & Melissa Powers, Climate Change and The Law

CHRIS WOLD, DAVID HUNTER & MELISSA POWERS, CLIMATE CHANGE AND THE LAW (Lexis-Nexis, 2d ed.
forthcoming Fall 2013) (Note: These are drafts that are subject to modification before publication).
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 (CO2) concentrations are to be kept below 450 parts per million, 80 percent of the
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cumulative CO2 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 Protocols 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 2007. The Action Plan put the
world on a schedule to agree to a post-Kyoto regime by the end of 2009. 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 2012
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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 2020.
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 CO2 emissions from 1850 to 2008.
Chinas 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
CO2 emissions now account for 54 percent of total CO2 emissions.
Sixteen countries account for approximately 80 percent of the worlds 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 2012. 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 Protocols first commitment period in 2012 and the beginning
of a new commitment period and that the Annex I countries will adopt further mandatory
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reductions after 2012. The Parties also committed to establishing a framework at their meeting in
Bali, Indonesia in December 2007. 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 EUs
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 (1530 percent by
2020 and 6080 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 postKyoto Protocol accord and 30 percent if there is; the EU made no proposals beyond 2020. 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 Protocols 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.
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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 worlds 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.
Its important to ensure that we get results, and so we will create a strong and transparent
system for measuring each countrys 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. * * *
Were 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. Well help the worlds 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 Presidents 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
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main elements of President Bushs 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.
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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 2009.
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. . . .
55. 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.
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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. . . .
10. 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
0.150.20 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. * * *
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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 EUs energy needs be met by renewable sources by 2020. 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 Bushs 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 Bushs 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 Administrations
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
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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 Unions approach. Clearly, the
United States and Japan have influenced the G8s 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?
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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 2009. 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.
UNFCCC, DECISION 1/CP.13

Bali Action Plan
The Conference of the Parties,
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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;
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(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
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;
__________

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
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 2020. 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. INTL ENVTL. L. REV. 645,
65253 (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

COPEHAGEN TO DURBAN
15
CHANGE
REGIME:
FROM
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 Plans 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 regimes 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 postKyoto 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 Plans 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
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
2009.
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
long-term global goal for emission reductions, to achieve the ultimate objective of the
UNFCCC. Found in Article 2, that ultimate objective is to achieve stabilization of greenhouse
gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic
interference with the climate system. In adopting an overall five percent reduction in GHG
emissions under the Kyoto Protocol, the Parties recognized that they were taking only the first
step in reaching that objective. The Protocols commitments reflect political expediency, not a
scientific judgment that those reductions would by themselves prevent particular climate
impacts. Implicit in that judgment, however, was that the world had several decades to achieve
stabilization of greenhouse gases at a safe concentration, which at the time was generally viewed
as approximately double pre-industrial levels (i.e., about 550 ppm).
The scientific understanding at the time, including the findings in the IPCCs Fourth
Assessment, suggested that the situation was more urgent than realized in Kyoto. Leading up to
the Copenhagen negotiations, most scientists and environmental groups proposed a long-term
goal of preventing average temperatures from rising more than 2 degrees Celsius (3.6 degrees
Fahrenheit) above pre-industrial average temperatures because beyond 2 degrees Celsius, the
risks to human societies and ecosystems grow significantly [and] the risks of abrupt, accelerated,
or runaway climate change also increase, such as loss of the West Antarctic and Greenland ice
sheets. INTERNATIONAL CLIMATE CHANGE TASK FORCE, MEETING THE CLIMATE CHALLENGE:
RECOMMENDATIONS OF THE INTERNATIONAL CLIMATE CHANGE TASK FORCE 3 (2005). The
Alliance of Small Island States urged a more ambitious goal of 1.5 degrees Celsius above preindustrial levels and the stabilization of GHG concentrations in the atmosphere at well below 350
parts per million CO2eq.
Despite the scientific information, the Parties struggled to reach consensus on a shared
vision, in part because significant uncertainty still existed concerning many aspects of the
science: what temperature increase will allow us to avoid the worst impacts? What
concentrations of greenhouse gases will ensure that global average temperatures do not exceed
the target? What emission caps will result in the desired atmospheric concentrations? What costs
are associated with certain temperature goals?
__________
2. Which Countries Will be Subject to Commitments?

While articulating the shared vision for the negotiations remained an important and
contentious issue (indeed, it still does), the fundamental issue at the heart of the negotiations
leading to Copenhagen was which countries would be subject to commitments to reduce GHGs.
The Bali Action Plan clearly anticipated that both developed and developing countries would
agree to some form of commitments. Given the history of the UNFCCC and the Kyoto Protocol,
it is clear that all developed countries (i.e., Annex I countries), including the United States, were
expected to have binding commitments in the post-Kyoto period. It is not at all clear, however,
which developing countries will or should have commitments, binding or otherwise.
As the United States argued, at least some indicators suggested that developing countries
needed to accept obligations of some kind. Sometime before the Copenhagen meeting, China
surpassed the United States as the worlds largest emitter of greenhouse gases. By 2004,
18
aggregate CO2 emissions from developing countries, both exclusive and inclusive of land use
activities, exceeded developed country emissions; in both cases developing country emissions
are 54 percent of the total. INTERNATIONAL ENERGY AGENCY, CO2 EMISSIONS FROM FUEL
COMBUSTION: HIGHLIGHTS: 2011 EDITION 7 (2011); IPCC, Summary for Policymakers, in
CLIMATE CHANGE 2007: MITIGATION. CONTRIBUTION OF WORKING GROUP III TO THE FOURTH
ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 3 (B. Metz et
al. eds., 2007). Moreover, their greenhouse gas intensity essentially an energy efficiency
measure was 1.06 kilograms CO2 equivalent per dollar of GDP compared to just 0.68
kilograms CO2 equivalent per dollar of GDP for Annex I Parties.
The Bali Action Plan provided that developing country commitments should reflect national
circumstances, and it seemed obvious that not all developing countries would be treated alike.
First, emissions varied widely among reporting Parties, with Tuvalu reporting a low of 4,660
tonnes CO2 equivalent (for CO2, CH4, and N2O) and China reporting a high of more than 4
billion tonnes CO2 equivalent (or 863,257 times more than Tuvalu). A total of 19 non-Annex I
Parties reported emissions smaller than 1 Mt CO2 equivalent and 22 Parties reported emissions
greater than 100 Mt CO2 equivalent.
Second, the sources of greenhouse gases varied widely across developing countries. Unlike
emissions for Annex I Parties, where the energy sector constituted the largest source of
greenhouse gas emissions, the energy sector was the largest source of emissions for just 70 nonAnnex I Parties, with agriculture the largest source for the other 45 non-Annex I Parties
reporting. FCCC/SBI/2005/18/Add.2, paras. 2124, 27 (Oct. 25, 2005). In 2005, only 55 percent
of non-Annex I Parties reported CO2 emissions as their primary greenhouse gas. One-third of
non-Annex I Parties reported methane as their most significant greenhouse gas, and 14 Parties
(12 percent) emitted more nitrous oxide than any other greenhouse gas. Presumably, the needs of
countries with large agricultural emissions would require solutions different from those countries
with a majority of emissions from the energy sector.
In apparent recognition that a one-size-fits-all approach may not be appropriate, after
adoption of the Bali Action Plan the United States outlined the following three-part framework
for addressing differentiated commitments: 1) major developing economies must limit or reduce
their GHG emissions because climate change cannot be adequately addressed through
commitments for emissions cuts by developed countries alone; 2) the negotiations must clearly
differentiate among developing countries giving sufficient emphasis to the larger emitting
developing countries in terms of the size of their economies, level of emissions and level of
energy utilization, and sufficiently link the character or extent of responsibility to such factors;
and 3) the negotiations must recognize that the responsibilities of the smaller or least developed
countries are different from the larger, more advanced developing countries and that smaller and
less developed countries are entitled to receive more differentiated treatment so as to reflect their
special needs and circumstances. White House, Statement by the Press Secretary (Dec. 15,
2007).
While the U.S. statement did not identify which developing nations constituted major
developing economies, the United States was clearly referring to the developing countries
among the 16 largest emitters involved in the Major Emitters Process China, India, South
19
Korea, Mexico, South Africa, Indonesia, and Brazil. As noted above, these countries adamantly
opposed legally binding commitments, although some had already adopted voluntary measures
to reduce GHG emissions.
__________

1. Based on the information above, which developing countries do you think should have
obligations under a post-Kyoto Protocol agreement? Would all developing countries be subject
to similar obligations? For example, while emissions from some developing countries, such as
China and South Korea, are predominately from industrial sources, the emissions from other
countries are primarily agricultural. Should any commitments be specific to particular gases or
sectors? What would be the advantage of such an approach?
2. Many believe the U.S. position has been somewhat disingenuous, hiding its own desire to
avoid binding targets behind the claim that all major emitters should have obligations. A focus
on current annual emissions shifts the focus from the historical, cumulative, and disproportionate
contribution of the United States and away from any discussion of per capita emissions, where
the United States far exceeds China.
__________
3. Options for Mitigation Commitments

Even before the ink was dry on the Kyoto Protocol, some governments and commentators
questioned whether a focus on outputs (emissions) only was the best strategy for mitigating the
impacts of climate change. Instead, they sought to broaden the scope of possible strategies to
address inputs, such as energy use and other emissions-generating activities. What, then, are
viable approaches for a future climate agreement that meet the concerns of the United States and
developing countries, while also preventing catastrophic impacts of climate change? The new
agreement could resemble the existing Kyoto Protocol, with additional overall caps and
expansive use of flexibility mechanisms. The caps could also take on a variety of different
shapes, or there could be an emphasis on other policy prescriptions besides caps. In the prelude
to the 2009 Copenhagen negotiations, however, it seemed clear that at least the vast majority of
developing countries would not agree to caps, although they may agree to other types of
obligations.
What, then, are the alternatives? Governments, NGOs, academics, and others proposed a
wide variety of possibilities. For some, the Kyoto Protocols structure provided all the flexibility
needed to ensure cost-effective emissions reductions as well as the participation of developing
countries. For them, the only questions to be negotiated were the stringency of the commitments
and timetable for meeting those commitments. See Cedric Philibert, Approaches for Future
International Co-operation, COM/ENV/EPOC/IEA/SLT(2005)6, (OECD Environment
Directorate & International Energy Agency, 2005) (summarizing the approaches for a postKyoto agreement). A number of proposals also relied on a quantitative approach but would focus
not on actual emissions. Instead, these quantitative approaches focused on other thresholds, such
as per capita emissions or emissions intensity. Still others took a non-quantitative approach that
20
would focus on technology transfer, research and development, or changes in policies. Id. By one
count, more than 40 different proposals had been produced. Daniel Bodansky, International
Climate Efforts Beyond 2012: A Survey of Approaches 1 (Pew Center on Global Climate Change
2004).
Two alternatives to targets and timetables garnered significant attention leading up to the
Copenhagen negotiations: indexed intensity targets and sustainable development policies and
measures (also known as SD-PAMs or PAMs). As you read the excerpts below, consider which
alternative best meets the concerns of the various negotiating blocs and which may best avoid
climate change impacts. In addition, because of the substantial and vibrant carbon market, it is
highly likely that any future regime will include carbon trading. Which approach would work
best with current carbon trading mechanisms?
a. Intensity Targets
KEVIN A. BAUMERT et al., WHAT MIGHT A DEVELOPING COUNTRY
CLIMATE COMMITMENT LOOK LIKE?
CLIMATE NOTES 416 (World Resources Institute, May 1999)*
Measuring Climate Performance

Because carbon emission levels in most countries are closely correlated with economic
growth, a countrys absolute emission level may not always be a good indicator of climate
performance. . . .
In some cases, rapidly growing GHG emission levels are not necessarily indicative of poor
climate performance. For example, even though Chinas annual GHG emissions grew by nearly
500 million tons of carbon (MtC) between 1980 and 1997, energy efficiency gains achieved
during this period resulted in avoided emissions of 432 MtC. Although not done to protect the
climate, without the price reforms and other measures that improved energy efficiency, Chinas
carbon emissions in 1997 would have been more than 50 percent higher than its actual emissions.
This decoupling of economic development and emissions growth is evident in terms of Chinas
carbon intensity, which has declined by about 45 percent since 1980. Unfortunately, Chinas
rapidly declining carbon intensity is the exception rather than the rule for most countries.
In the Ukraine, carbon emissions from 1990 to 1995 dropped by more than 40 percent.
However, this decrease is due primarily to economic decline, rather than energy efficiency, fuel
saving, or any other climate- or energy-related policy. In fact, the Ukraines carbon intensity
actually worsened during this period, increasing 20 percent from 994 to 1,194 tons of carbon per
million dollars of gross domestic product (GDP) (measured in purchasing power parity).
Similarly, absolute carbon emissions in the Russian Federation fell by more than 169 MtC
between 1990 and 1995 (26 percent) while the economy became more carbon intensive,
increasing in carbon intensity from 807 to 950. Thus, although overall levels of carbon emissions
have decreased, neither Russia nor the Ukraine has become more sustainable this decade.
*
Copyright 1999 by World Resources Institute. All rights reserved. Reprinted with permission.
21
Climate performance can be better expressed through emissions per unit of GDP. This
measure illustrates how well countries are decoupling the typically high correlation between
carbon emissions and GDP . . . Indeed one could argue that the path toward achieving the
Climate Conventions objective will necessarily require decoupling economic output and GHG
emissions, much in the way conventional air pollution has been delinked from GDP in many
industrialized countries. . . . A carbon intensity indicator measures tons of carbon emissions per
million dollars of GDP.
EXPLORING THE CARBON INTENSITY INDICATOR
[The relationship between GDP and emissions, the two components of the carbon intensity
indicator, is intuitive most economic activity typically results in GHG emissions.]
The key determinants of a national-level indicator are a countrys economic structure,
geography, fuel mix, and the energy efficiency of its production processes. Argentina and Brazil,
for example, have low intensities partly due to the widespread use of carbon-free hydroelectric
power. China and India have high intensities (although their trend lines differ) due partially to
exploitation of domestic coal resources.
More important, however, the main drivers of change in developing country carbon
intensities are policies and measures (or external shocks) that affect a countrys economic
structure, energy efficiency, and fuel choices. For example, Chinas successful decoupling of
economic growth and carbon emissions (demonstrated by the steep decline in the carbon
intensity indicator) is due largely to energy price reforms. Coal subsidies in China fell from 61
percent in 1984 to 29 percent in 1995, and petroleum subsidies dropped from 55 percent in 1990
to 2 percent in 1995. Shifts in economic activity to lower or higher carbon sectors as well as
technological progress also contribute to variations in intensity trends. Disaggregating the carbon
intensity indicators by sector and subsector would help reveal where fossil fuel use is most
efficient and inefficient, shedding light on which sectors and industries drive the country-level
indicators.
Finally, carbon intensity indicators differ from other measures, such as total carbon emissions
or emissions per capita, in that they are not driven primarily by economic growth. Typically,
during economic decline, both GDP and energy-related carbon emissions fall (while the opposite
is true for economic growth). Which figure falls faster, and how a countrys carbon intensity
changes, is less clear. In some cases, such as economic decline in the Russian Federation and the
Ukraine, GDP fell faster than carbon, signaling an increase in carbon intensity. In other cases,
such as Bulgaria, Poland, Hungary, and other Eastern European countries, carbon intensity levels
fell when economies declined (i.e., carbon emissions fell faster than GDP). This is often the
result of deliberate energy policy reforms, including price liberalization and energy restructuring.
[The authors then note that the most important consideration is not a comparison of carbon
intensity between countries but rather an assessment of a countrys performance relative to
itself, taking into account both absolute intensity levels and changes over time. They also report
that, among developing countries, there is no discernible relationship between carbon intensity
22
and level of development. For example, China and India have similar per capita income levels,
yet Chinas intensity is falling rapidly while Indias is rising. On the other hand, for mature,
industrialized economies . . . carbon intensity decreases consistently over time because GDP
growth typically outpaces energy consumption.]
What Might a Developing Country Commitment Look Like?
A carbon intensity indicator, or another more comprehensive intensity-based measure, could
also be used as a measure for a country commitment under the Climate Convention or Kyoto
Protocol. Such a commitment might represent an agreement to improve intensity levels relative
to past performance. In other words, the commitment might take the form of lowering the
countrys carbon or GHG intensity indicator. Determining compliance would be simple and
straightforward in this case a country would be in compliance if its actual intensity indicator
was less than or equal to a target intensity indicator (i.e., the commitment) during the compliance
period.
However, a country making a binding commitment might want to engage in international
emissions trading. In this case, the intensity indicator could be translated into an absolute level of
emissions during the compliance period. (See the equation below.)
Allowable GHG emissions = (GDP) (GHG emissions/GDP)
where GHG emissions / GDP is the target intensity indicator and GDP is the total economic
output during the compliance period. For the purposes of an individual country commitment,
GDP would likely be measured in local currency rather than PPP [purchasing power parity] or
market exchange rates. This could eliminate possible controversy over exchange rate variations
or PPP conversion factors. * * *
BRINGING AN INTENSITY INDICATOR INTO PRACTICE * * *
Agreeing on a Commitment Level
Another issue inherent in any discussion of developing country commitments is agreeing on
an acceptable target level. As noted above, a carbon intensity indicator removes the need to
engage in an emissions guessing game. However, negotiators will still need to consider what
constitutes good performance and the intensity level from which to judge progress.
For many countries, progress could be benchmarked against a base year intensity indicator.
Because the carbon intensity indicator internalizes fluctuations in economic growth, it is
significantly less variable over time. The carbon intensity levels of Argentina, Brazil, Ghana,
Indonesia, Korea, and Mexico have changed less than 10 percent over a 17-year period from
1980 to 1996. (See Table 2.) The Republic of Korea, for example, increased its absolute level of
emissions by more than 225 percent during the 19801996 period. Over the same period,
however, the carbon intensity indicator changed a mere 1.1 percent. For countries that experience
more noticeable increases or declines in carbon intensity, projections may be needed. . . .
23
For example, carbon-reduction measures already taken and any future planned initiatives
may help refine predictions and help shape a more plausible business-as-usual path from which
to gauge progress. Carbon intensity indicators disaggregated by sector could also help forecast
intensities by revealing where opportunities for reducing emissions exist and how existing
policies and measures may alter future intensity levels.
Table 2: Percent Changes in Carbon Intensity and Carbon Emissions from 1980 to 1996
Country
Argentina
Brazil
Chile
China
Ghana
India
Indonesia
Rep. of Korea
Malaysia
Mexico
Australia
European Union
Japan
United States
Percent Change in
Carbon Intensity
-5.8
6.4
-18.5
-47.2
5.5
29.1
-4.9
-1.1
57.6
1.8
-5.4
-29.2
-20.4
-20.3
Percent Change in
Total Carbon Emissions
20.8
49.0
74.6
127.8
66.8
187.2
159.0
226.1
325.6
38.4
51.2
-2.5
26.9
15.9
Compliance and Emissions Trading

Although there are environmental advantages to intensity indicators, countries will be
uncertain of their exact allowable emission levels until the end of the compliance period (unlike
an Annex I-style commitment, where a countrys allowable amount is calculated on the basis of
the 1990 emission level). The time lag is necessary because GDP levels are needed to calculate
allowable emissions. Thus, until emissions and GDP data are compiled at the end of the
compliance period, a country will be unsure of both actual and allowable emissions. This added
uncertainty has implications for compliance and emissions trading.
Annual assessments during the multiyear compliance period are one means of gauging
country progress. However, an interim period at the conclusion of the compliance period would
be needed during which countries could purchase allowances to come into compliance if
necessary. Such a grace period is already envisioned by some as a desirable, or necessary, feature
of an Annex I compliance system.
Emissions trading might also be inhibited by the absence of specific targets expressed in tons
per year. However, options and futures markets could increase market efficiency and enable
market transactions before or during the compliance period, with the final trades for compliance
purposes occurring during the grace period. More significantly, again, multiyear compliance
periods allow for annual assessments that would help countries gauge the amount of allowances
24
needed to purchase or available to sell. After the first year of the compliance period, for example,
a country could compare its actual emissions with the years allowable amount.
Thus, emissions trading could be far more dynamic than the simplistic example in Box 3
suggests. The possible shortcomings of emissions trading under an intensity indicator should be
weighed against the dangers of operating a trading system that would combine existing Annex I
targets with large emission growth commitments from non-Annex I countries.
25
Box 3 Applying a GHG Intensity Indicator: A Thought Exercise

STEP 1. Formulating the Target
IF: Country A, a rapidly growing developing country, agrees to lower its
greenhouse gas (GHG) intensity by 40 percent below 1996 levels between the 2013
2017 period, and 1996 data are:
Greenhouse gas emissions = 1,000 tons of carbon equivalent
Gross domestic product = $2 million
GHG intensity = 500 tons of greenhouse gas per million dollars of GDP
THEN: The target GHG intensity for 20132017 = 300 (40 percent below the 1996
level of 500).
STEP 2. Determining Allowable Emissions
IF: During 20132017, Country A actually has:
Gross domestic product = $30 million (average of $6 million per year for 5 years
three times higher than 1996 levels)
THEN: Country As allowable greenhouse gas emissions = 9,000 metric tons of
carbon equivalent over the 5-year period (30 x 300) (i.e., GDP times the target
GHG intensity indicator).
Despite this reduction in intensity, absolute levels of GHG emissions are still allowed
to increase by 80 percent (from 1,000 tons of carbon equivalent in 1996 to 1,800 tons
of carbon equivalent yearly during the 20132017 period).
STEP 3. How Much to Trade?
Outcome 1: If GHG emissions equal 8,000 tons of carbon equivalent during the
20132017 period, Country A may sell 1,000 tons of allowances through international
emissions trading (i.e., the allowable amount exceeds actual emissions by 1,000 tons).
Outcome 2: If GHG emissions equal 10,000 tons of carbon equivalent, Country A
must buy 1,000 allowances through emissions trading (actual emissions exceed the
allowable amount by 1,000 tons).
26
__________

1. Baumert et al. agree that a carbon intensity indicator is a possible next step, but not the
last step, and that future absolute limits or reductions may be needed. Nevertheless, they defend
intensity indicators because they help address the climate challenge by decoupling economic
development and GHG emissions growth. Given our current understanding of climate change
science, would intensity indicators make viable targets for developing countries?
2. The United States has been a proponent of intensity targets, because it has not wanted to
accept any absolute limits on its own emissions. As discussed in Chapter 12, President Bush set a
goal for the United States to reduce its greenhouse gas intensity by 18 percent in ten years
through voluntary measures. According to President Bush, this plan will achieve 100 million
metric tons of reduced emissions in 2012 alone, with more than 500 million metric tons in
cumulative savings over the entire decade and this is comparable to the average progress that
nations participating in the Kyoto Protocol are required to achieve. White House, Global
Climate Change Policy Book (Feb. 14, 2002). This policy would lead to an increase in U.S.
GHG emissions and, because U.S. carbon intensity is declining anyway, President Bushs goal
represented only a slight change from business as usual. Many proponents of intensity targets,
including Baumert et al., do not believe they are appropriate for developed countries, because of
their larger historical contribution to climate change. Do you agree?
__________
b. Policies and Measures

A policies-and-measures approach (PAMs), also called sustainable development policies and
measures (SD-PAMs), that focuses not on emissions but rather on a countrys laws and policies,
such as requiring the use of renewable energy, has generated much enthusiasm for a number of
reasons. First, the PAMs approach could transform entire economic sectors, such as the
transportation sector, if, for example, governments mandate specific technological or fuel
efficiency requirements for automobiles. Second, many believe it is the only way to obtain
commitments from developing countries. Developing countries have adamantly opposed
quantifiable emissions limits, because such limits are viewed as constraining economic
development. Developing countries may be more willing to accept PAMs that place the same or
similar requirements on everyone and may also bring development opportunities to them. Third,
assuming that the PAMs lead to greater country participation, leakage will be reduced or
eliminated: companies will not have an incentive to move their production to other countries
because all countries will have obligations to adopt certain policies. A PAMs approach can be
implemented in many ways as suggested in the following excerpt:
DANIEL BODANSKY, CLIMATE COMMITMENTS:

ASSESSING THE OPTIONS
in BEYOND KYOTO: ADVANCING THE INTERNATIONAL EFFORT AGAINST CLIMATE CHANGE 37,
27
4143 (Pew Center on Global Climate Change 2003)*

In contrast to a target-based approach, a commitment regarding policies and measures
(PAMs) is an obligation of conduct rather than an obligation of result: it requires countries to act
in certain ways, but does not require them to achieve any particular level of emissions or
financial contribution. During the negotiation of the Kyoto Protocol, the European Union pushed
for the inclusion of commitments related to policies and measures, but due to strong resistance
from the United States, the Protocol includes only an illustrative list of possible PAMs, without
requiring states to adopt them. Examples of PAMs include:
Technology and performance standards An international commitment can address the use
of emission-reduction technologies. For example, it could specify mandatory standards relating
to appliance efficiency, residential insulation, or the use of renewable or other non-emitting
energy sources. The international commitment can either require the use of particular
technologies (which would tend to lock in those technologies) or set forth a performance
standard (for example, relating to energy efficiency) that allows private entities flexibility as to
the choice of particular technologies. Among the relatively few examples of international
technology standards are the construction, design, and equipment standards for oil tankers set
forth in the Marine Convention (MARPOL) including, for example, segregated ballast tanks.
Taxes An international commitment can provide for a common or harmonized tax on
GHG emissions. So long as a country had the required tax in place, it would satisfy its
international commitment, regardless of the actual level of emissions reduction achieved.
Subsidy removal An international commitment can require countries to remove specified
subsidies, for example, on energy production or consumption. The Kyoto Protocol includes in its
illustrative list of PAMs for developed countries the progressive reduction and phasing out of
subsidies. Subsidies are a problem not only in industrialized countries: the International Energy
Agency estimates that removing energy subsidies in just eight developing and transition
countries would reduce their CO2 emissions by 17 percent and global emissions by 4.6 percent.
Emissions trading An emissions commitment can be coupled with a PAM requiring
countries to implement a domestic emissions trading program with specified features (including
possible linkages with other national programs and with an international emissions trading
system, or a safety-valve device). The European Union directive on emissions trading represents
an effort of this kind: it sets forth the parameters of a required emissions trading system for EU
member states.
Technology R & D and incentives To address the low rates of investment in research and
development concerning emission-reducing technologies, a commitment might require states to
devote additional resources for R & D, as well as for deployment of existing and new
technologies. For example, countries could commit to various forms of participation in an
international hydrogen initiative. The agreement on the international space station is one
illustration of an international agreement focusing on cooperative research, development, and
*
Copyright 2003 by Pew Center on Global Climate Change. All rights reserved. Reprinted with permission.
28
deployment.
Since a targets-based approach and a PAM-based approach are often seen as competitors, it
is worth emphasizing that they could complement one another: a target could be used to specify
the overall result to be achieved, while PAMs could specify the means for reaching that result.
Indeed, in some cases the relationship could be even stronger. As some commentators have
noted, an international target-and trading approach would be most cost-effective if combined
with national PAMs ensuring that domestic trading systems are complementary.
__________
Policies and measures may be most effective when developed and applied at an industry
sector level. Examples might include:
Achieving specific high levels of efficiency (measured as an output per unit of energy) in
home or industrial appliances, transportation systems, utilities or production processes;
Eliminating the use of sulfur hexafluoride (SF6) or perfluorocarbons (PFCs) in the

industrial sector;
Developing the technology for cost-effective capture and storage of CO2 by 2025;
Replacing gasoline in the transport sector with hydrogen produced by non-carbon

emitting sources by 2050;
Eliminating carbon emissions from the energy sector by 2060.
Jonathan Pershing & Fernando Tudela, A Long-term Target: Framing the Climate Effort,
in BEYOND KYOTO: ADVANCING THE INTERNATIONAL EFFORT AGAINST CLIMATE CHANGE 30
(Pew Center on Global Climate Change 2003).
In the next excerpt, Scott Barrett argues that, to make a difference to the climate, a treaty
must create incentives for long-term technical innovation. To that end, he would couple a
policies and measures approach with cooperative research and development, a big science
collaboration comparable to the International Space Station, that would focus on electric power
and transportation. Concerning the policies and measures aspect of his proposal, he makes the
following observations:
SCOTT BARRETT, U.S. LEADERSHIP FOR A GLOBAL

CLIMATE CHANGE REGIME
1718 (Climate Policy Center March 2003), available at, http://www.cleanaircoolplanet.org/cpc/library_cpc.php*
[W]e must rely on business to develop and produce new energy technologies. Supplemental
protocols should establish a system for agreeing on common standards for technologies that can
*
Copyright 2003 by Scott Barrett. All rights reserved. Reprinted with permission.
29
be developed using the R&D. Economists normally reject the setting of technology standards.
But they have a strategic advantage. The standard of requiring catalytic converters on
automobiles, coupled with the use of unleaded gasoline, has effectively spread this technology
around the world. Why? One reason is that a combination of economies of scale and learning has
lowered the costs of producing both technologies. A second reason is that countries
manufacturing either autos or gasoline want to be able to sell their products in the leading
markets so they will produce to these standards for commercial reasons. A third reason is that
network externalities mean that every country wants to do what its neighbors are doing. If your
neighbor requires catalytic converters, your own gas stations will supply unleaded gasoline to
meet the demand of cars and trucks crossing your border. Having done so, it then becomes
cheaper to require catalytic converters domestically. Fourth, there will be a domestic demand for
the new technologies. It is hard for a country to argue for an environmental standard that is
weaker than available abroad; why should our countrys public health be valued less than that of
other countries? Finally, standards create automatic trade restrictions restrictions that are easy
to monitor and enforce, and that are permitted by the rules of the World Trade Organization.
Again, notice the strategic effect of this approach. As more countries adopt a standard, it
becomes more attractive for others to adopt the same standard. This kind of incentive is lacking
in the Kyoto approach. In contrast to Kyoto, compliance with the protocol would also be easy to
monitor and verify. Standards agreements already exist in related areas. One multilateral
agreement establishes auto standards. Another establishes standards for oil tankers.
There are, to be sure, problems with the standards approach. One problem is that standards
will work better for some sectors than for others. For automobiles, network externalities are
relatively important, leading to a positive feedback in the adoption of new technologies such as
the fuel cell. For other sectors, such as electric power generation, economies of scale may be
important, but network externalities will be less so.
Another disadvantage is that standards are not always the most cost-effective way of
reducing emissions. Certain parts of the economy will not be affected by the standards protocols.
Standards may lock in a technology, rather than promote continuous innovation and
improvement. The standards approach is very much a second best proposal. . . .
I have emphasized the strategic advantage of standards, but others have noted a different
advantage to any policy and measure as compared to an emission limit. When countries sign up
to an emission limit, they do so without knowing how much implementation will cost. With
policies and measures, including standards, it is harder to know the final effect of
implementation on emissions, but it is easier to estimate the cost. The allocation problems
associated with Kyoto in which the United States is given a very stringent target and Russia
an overly generous one are thus eased by a policies-and-measures approach. This advantage
would be especially important if the system were subject to unanticipated shocks. Timing of the
economic cycle and fluctuations in energy prices can have a huge effect on emissions, but they
would have little effect on the adoption of technologies.
I should emphasize, however, that standards, like targets, must be carefully chosen. They
must, in particular, offer every party a benefit in excess of the cost. The standards approach is
30
basically intended to affect a technological transformation of the global economic system, but the
extent of the transformation could be large or small, depending partly on the success of the joint
R&D and partly on the level of mitigation countries think is justified. At the one extreme,
standards could mandate hybrid engines for new automobiles. At the other extreme, they could
mandate fuel cells or electric vehicles coupled with carbon capture and storage in electricity
supply. The essential point is that, for strategic reasons, it may be better to negotiate agreements
promoting the development and diffusion of new technologies directly. The Kyoto approach
promotes technological development and diffusion indirectly, by raising the cost of emitting
greenhouse gases. Both approaches have to make choices about the policy goals or ends, which
are substantial versus modest mitigation. Where they differ is in the choice of the policy
instrument or means.
__________

1. The economist Joseph Stiglitz has proposed a common environmental tax on emissions of
greenhouse gases as part of the post-Kyoto regime.
There is a social cost to emissions, and the common environmental tax would
simply make everyone pay the social cost. This is in accord with the most basic of
economic principles, that individuals and firms should pay their full (marginal)
costs. The world would, of course, have to agree on assessing the magnitude of
the social cost of emissions; the tax could, for instance, be set so that the level of
(global) reductions is the same as that set by the Kyoto targets. As technologies
evolve, and the nature of the threat of global warming becomes clearer, the tax
rate could adjust, perhaps up, perhaps down.
Joseph E. Stiglitz, A New Agenda for Global Warming, ECONOMISTS VOICE, July 2006, at 3.
Review the discussion of carbon taxes in Chapter 2, Section II.B.3. What advantages and
disadvantages does such a proposal have? What challenges must be overcome to impose a global
tax?
2. Daniel Bodansky summarizes a number of other proposals:
No lose targets No lose targets are another type of target that some have
suggested for less developed countries (or possibly for all developing countries).
No lose targets are non-binding and, if exceeded, do not have any compliance
consequence. But if a [developing country's] emissions are below the no lose
target, it would be allowed to sell surplus emissions to other countries and thereby
receive a benefit.
Dual intensity targets Dual intensity targets combine dynamic and no lose
targets in a further effort to address the problem of economic uncertainty. Under
this approach, developing countries would receive two targets: a relatively weak
compliance target and a more stringent selling target. Both targets would be
carbon intensity targets, indexed to the countrys GDP. The compliance target
31
would be legally binding; if a country exceeded the target, it would suffer

compliance consequences. In contrast, the selling target would be no lose: if a
country exceeded its target, it would not suffer any compliance consequence but,
if it bettered the target, then it could sell its excess allowances internationally.
Because different targets would be established for compliance and emissions
trading purposes, developing countries could be given a comparatively easy
compliance target that does not unduly constrain economic growth or create the
danger of hot air, since a more stringent target would be defined for emissions
trading purposes.
Conditional targets The Human Development Goals proposal suggests that,
to the extent that a developing country target goes beyond projected business-asusual improvements in carbon intensity, it should be made conditional on the
receipt of financial assistance or technology from developed countries.
Sectoral targets Although most target-based proposals set a target for a
countrys national emissions, a target could apply to a limited number of sectors
for example, energy production. The Growth Baselines and the Converging
Markets proposals, for example, envision the possibility of sector-based targets.
The Technology Backstop Protocol would, in effect, define long-term zero
emission targets for particular sectors: fossil fuel electric power generation,
synthetic fuels, and fossil fuel refining.
Safety valve Several target-based proposals, including the Hybrid
International Emissions Trading and the Dual Track approaches, include a safety
valve mechanism. A safety valve allows states (and possibly individual
companies or other entities) to buy additional allowances at a predetermined
safety valve price. This makes an emissions target conditional: if the marginal
cost of abatement rises above the safety valve level, then the target is relaxed
through the sale of additional allowances. If the price is set above the projected
marginal cost of compliance, the safety valve serves as insurance against
unexpectedly high costs. Setting a low price can effectively turn the emissions
target into a tax. A safety valve could be implemented by individual countries or
internationally. One design issue in either case is how the proceeds, if any, would
be spent.
Bodansky, A Survey of Approaches, at 1112.
Under another approach, one ultimately endorsed by the Copenhagen Accord, the climate
change regime would act as a facilitator of national level actions to mitigate climate change.
Rather than negotiate global or country-specific commitments, governments would inform the
Parties to the climate change regime of the commitments they are taking and will take in the
future. This approach recognizes that the very different and entrenched views of countries
concerning climate change may weaken any eventual international agreement, if an agreement
can be reached at all. It also recognizes each countrys economic circumstances, capacities to
address climate change, and emissions levels. What are the advantages and disadvantages of this
32
approach?
3. Climate Change and Development. As noted earlier in this chapter, climate change and
development are clearly linked. It should also be readily apparent that development is the key
issue for developing countries in the climate change context and other contexts. Food security,
access to clean water, clean air, energy, and transportation are all issues that all developing
countries must address. The PAMs approach is thought to provide the best opportunities for
linking climate change and development because policies and measures could be tied to
sustainable development and climate goals. How should a PAMs approach be constructed to
ensure climate change policy leads to development gains for developing countries?
4. Problem Exercise. Your instructor will divide you into groups representing different
sectors, such as the transportation, energy, forestry, and chemicals sectors. Identify what these
sectors are doing at the national level to reduce GHG emissions. Do any of these strategies
provide the basis for an international agreement to reduce emissions within that sector? What
policies and measures being taken nationally or subnationally would be appropriate for
international cooperation?
5. Class Exercise. Your instructor will divide the class into four groups: (1) Annex 1 Parties
to the Kyoto Protocol; (2) Large, middle-income developing countries represented by India and
China; (3) Small Island Developing States and other developing countries likely to be seriously
affected by climate change; and (4) industrialized countries, such as the United States, Japan, and
Canada, that have strong reservations about the Kyoto Protocol. Taking into account the latest
science and policy developments (including the release of the IPCCs latest report), negotiate a
post-Kyoto international response to climate change. To be successful in reversing climate
change, assume that the policy response must strive to (1) reduce GHG emissions worldwide by
60 to 80 percent and (2) to deploy technologies or land-use practices capable of drawing down
atmospheric carbon dioxide concentrations close to pre-industrial levels. You must accomplish
these goals in about 50 years. In addition to the issues and approaches described in this chapter,
consider both the Bali Action Plan and the following general issues for your negotiations.
DANIEL BODANSKY, A SURVEY OF APPROACHES

34*
Form and Forum of Negotiations

Should international efforts continue to focus on the development of a single, comprehensive
global regime and, if so, does the UNFCCC provide the most appropriate forum? Or should
negotiations proceed in a more flexible, decentralized manner, involving multiple agreements
and/or smaller groups of countries or private-sector parties (for example, like-minded states or
companies)? If this more variable geometry is pursued, should it be in addition, or as an
alternative, to the UNFCCC process?
Time Frame
*
Copyright Daniel Bodansky. All rights reserved. Reprinted with permission.

33
What is the appropriate time frame the Kyoto Protocols second commitment period, a
somewhat longer medium-term time frame, or the long-term evolution and development of the
regime?
Mitigation Commitments
Approaches to defining commitments Should the climate regime continue to operate in a
top-town manner, involving the multilateral negotiation of commitments? Or should it proceed in
a bottom-up fashion, seeking to encourage countries to make (and implement) pledges of
domestic measures to mitigate climate change? Can the two be combined?
Type of commitments What types of mitigation commitments should be included? Should
the climate regime continue to emphasize quantitative emission targets and, if so, should they be
fixed, national, Kyoto-like targets, or some alternative form of target (dynamic, dual, sectoral, no
lose, etc.)? Or are non-target-based approaches preferable for example, harmonized domestic
policies and measures, development-focused approaches, financial transfers, or technology
standards?
Stringency of commitments How should the stringency of commitments be determined? Is
it better to begin with relatively weak commitments, to encourage broad participation, or more
stringent commitments?
Differentiation and burden sharing How should the burden of commitments be shared
among countries? For example, if a target-based approach is adopted, how should targets be
allocated (for example, on the basis of population, historical responsibility, basic human needs)?
What is the pathway, if any, towards global coverage? Should the differentiation in the UNFCCC
and the Kyoto Protocol between developed and developing countries continue, or should
additional categories of countries be defined and, if so, on what basis (e.g., per capita GDP, per
capita emissions, total emissions)? Should criteria be developed for graduation of countries from
one category to another?
Adaptation
What approach should be taken to the issue of adaptation? Can existing approaches under the
UNFCCC be improved or expanded? Should a liability or insurance scheme be established to
provide compensation to countries adversely affected by climate change?
Implementation and Compliance
Are new institutions or approaches needed to assure that international climate commitments
are implemented and enforced?
__________
B. The Copenhagen Accord
34
Two months before the Copenhagen meeting, with various options for each aspect of the Bali
Action Plan in bracketed text, countries sent mixed signals about what they thought the meeting
could achieve. In October and November 2009, Brazil, China, India, Indonesia, and South Korea
announced that they would agree to take steps to mitigate climate change, providing a glimmer
of hope that the meeting could produce a positive outcome. These raised expectations quickly
fell, however, when the United States, Singapore, Mexico, Australia, and the other countries
participating in an Asia Pacific Economic Cooperation summit in November announced that the
Copenhagen meeting would likely end with a political deal rather than a legally binding treaty.
The roller coaster ride of expectations was not over. When President Obama and Premier Wen
Jiabao of China announced that they would attend the negotiations, they gave hope that a
compromise had already been reached between these countries.
By the time the Parties convened in Copenhagen, neither expectations nor text had been
clarified, but many observers still believed major progress could be made. From the beginning,
however, the Copenhagen meeting itself was marked by bitter divisions among negotiating blocs
and procedural setbacks. The first setback came on the second day of the meeting when Tuvalu
demanded discussion on a single, legally binding agreement. The G77-China adamantly opposed
the proposal, wanting to pursue the two-track approach: additional binding commitments for
developed countries under the Kyoto Protocol and nonbinding actions for developing countries
pursuant to Decisions of the Parties or by other means. The fissure among developing countries
brought the meeting to an impasse, and the meeting was temporarily suspended when the Parties
could not find consensus on a way forward.
The question of whether the Parties would develop a one-track or two-track approach
remained an issue throughout the meeting. A one-track approach would presumably carry
forward the structure and flexibility mechanisms of the Kyoto Protocol, but establish more
stringent targets and new timetables for Annex I Parties and perhaps carve out a new Annex for
major emitting developing countries. In so doing, it would essentially fold the United States into
the Kyoto Protocol and set the stage for more commitments from more countries in the future. A
two-track approach, in contrast, would keep developed and developing countries separate. As
noted above, China opposed the one-track option proposed by Tuvalu, fearing that it would be
the first developing country in line for binding commitments. The United States also made clear
that it would not sign onto a second commitment period under the Kyoto Protocol Thus, the
fissure among developing countries was by no means the only negative reaction to Tuvalus
proposal.
In the meantime, a leak of a draft Danish Agreement, intended as the negotiating text for a
nonbinding, political outcome to the negotiations, touched off a round of recriminations against
Denmark and other governments that contributed to the document. Developing countries railed
against the Danish Agreement for its lack of participation and failure to embrace a legally
binding outcome. In response to the Danish Agreement, the BASIC countries Brazil, South
Africa, India, and China floated their own proposal, which provided for amendments to the
Kyoto Protocols targets and timetables for Annex I Parties, a separate provision characterizing
any emissions reduction target by the United States as a commitment, and requirements for
additional financing to help developing countries implement nonbinding, nationally-defined
mitigation actions. The Alliance of Small Island States (AOSIS) added its more ambitious
35
proposal for a single-treaty outcome to the mix. In addition to amending the targets for Annex I
Parties, the AOSIS proposal also called for a collective reduction of overall emissions of at least
45% below 1990 levels by 2020, while actions by developing countries should in aggregate aim
to achieve significant deviations from baselines by 2020. In addition to these texts, the official
negotiating groups the AWG-LCA with its mandate to negotiate measures for the effective
and sustained implementation of the UNFCCC beyond 2012 and the AWG-KP with its mandate
to negotiate new targets and timetables for developed country Parties under the Kyoto Protocol
continued to submit draft texts on a variety of issues to the Parties.
Awash in paper and confusion, the meeting sputtered and tensions rose, with one delegate
actually punching another and then lifting a chair to strike again before cooler heads prevailed.
Governments faced significant political pressure to succeed on some level; certainly a deal must
be reached to address climate change beyond the Kyoto Protocols first commitment period.
Tens of thousands of observers in and around the Bella Center, the venue for the negotiations,
pressed governments for aggressive action to mitigate climate change. In an attempt to stave off
failure, governments sent their top Ministers a few days earlier than planned in the hopes of
finding a way forward.
By the meetings end, more than 110 heads of State had attended, often participating in the
minutiae of drafting text, a task usually reserved for lower-ranking officials. Still, it was a core of
20 to 25 heads of State and their staff that negotiated the Copenhagen Accord. The stakes and
gamesmanship reached absurdity. Chinese Premier Wen Jiabao snubbed President Obama by not
appearing for a meeting. He later sent a middle-ranking official to negotiate with a larger group
of heads of State. President Obama apparently barged into a meeting of Chinese Premier Wen,
Indian Prime Minister Manmohan Singh, Brazilian President Luiz Inacio Lula, and South
African President Jacob Zuma, demanding that they negotiate openly.
As the negotiations among heads of State continued, the United States insisted on
international verification of developing country NAMAs a direct challenge to China, which
had earlier rejected the same demand as an infringement on sovereignty. Other developing
countries demanded more money for adaptation and mitigation efforts. When U.S. Secretary of
State Hillary Clinton, and later President Obama, declared U.S. support for the goal of providing
$100 billion a year to developing countries, many in the G77 saw an offer they could not refuse.
China finally relented to minimal international oversight over implementation of developing
country NAMAs, particularly those that are supported by international financial assistance.
Still, the end was not yet near. The United States and others wanted the Copenhagen Accord
to have some status under the UNFCCC. Under the voting rules of the UNFCCC, the Parties
would need to adopt it by consensus. Many countries bitterly refused to adopt a document they
had no hand in drafting. Tuvalu spoke first, denouncing a process in which they saw a major
world leader (referring cryptically to President Obama) announcing the agreement on a hallway
video screen before they had even received the text. Venezuela declared the agreement a coup
detat against the United Nations. Sudan, the chair of the G77-China at the time, called the
Accord a suicide pact, an incineration pact in order to maintain the economic dominance of a
few countries. By likening the Accords effects on poor nations to those of the
Holocaust, Sudan brought the U.Ks lead negotiator, David Miliband, back from his hotel room
36
at 4:00 am. Racing back to the Bella Center, Miliband denounced Sudans analogy and implored
the delegates to accept the Copenhagen Accord, flawed as it was. Whether Sudans comment
proved too much for other governments to associate with or Miliband roused the delegates to
action or the realities of leaving Copenhagen without any agreement (and without locking in the
promised financial assistance) finally sank in, many developing countries did not object to the
Copenhagen Accord. Yet, with Venezuela, Sudan, Bolivia, and Nicaragua still in opposition,
consensus could not be reached to adopt the Accord. In the end, the Parties agreed to take[]
note of the Accord, which gave it little formal standing under the UNFCCC process.
The Copenhagen negotiations thus ended with more questions than answers about the next
steps forward. Unlike with most international agreements, the Parties left without a clear
workplan for future negotiations. The Copenhagen Accord explicitly calls on the UNFCCC
Conference of the Parties to take critical steps toward implementation, but the Parties did not
make any further decisions in Copenhagen to move forward with implementation and they
were not scheduled to meet as the Conference of the Parties (CoP) again until the following
years meeting in Cancun. Moreover, it was not clear whether (or which) negotiations would
continue under the UNFCCC or Kyoto Protocol. Although much progress had been made in
Copenhagen on texts relating to financial mechanisms, reduced emissions from deforestation and
forest degradation (REDD), and other issues, the future of these texts appeared uncertain as the
Conference ended. The Parties did agree to extend the mandates of the AWG-LCA and AWGKP, which at least acknowledged that ongoing negotiations would be necessary, leaving the
Parties and the Secretariat to identify which issues to prioritize in the upcoming year.
As you read the Copenhagen Accord below, consider how it relates to the broader UNFCCC
and Kyoto Protocol processes. What assumptions did the Parties make about how the Accord
would be implemented? Look for the compromises between the United States and China. Both
countries claimed success in the negotiations and both were widely criticized in the
international press. Did the Accord advance the world toward an international consensus on how
to address climate change?
COPENHAGEN ACCORD
Decision 2/CP.15 (2009)
In pursuit of the ultimate objective of the Convention as stated in its Article 2,
Being guided by the principles and provisions of the Convention,
Noting the results of work done by the two Ad hoc Working Groups,
Endorsing decision x/CP.15 on the Ad hoc Working Group on Long-term Cooperative
Action and decision x/CMP.5 that requests the Ad hoc Working Group on Further Commitments
of Annex I Parties under the Kyoto Protocol to continue its work,
Have agreed on this Copenhagen Accord which is operational immediately.
37
1. We underline that climate change is one of the greatest challenges of our time. We
emphasise our strong political will to urgently combat climate change in accordance with the
principle of common but differentiated responsibilities and respective capabilities. To achieve
the ultimate objective of the Convention to stabilize greenhouse gas concentration in the
atmosphere at a level that would prevent dangerous anthropogenic interference with the climate
system, we shall, recognizing the scientific view that the increase in global temperature should
be below 2 degrees Celsius, on the basis of equity and in the context of sustainable development,
enhance our long-term cooperative action to combat climate change. We recognize the critical
impacts of climate change and the potential impacts of response measures on countries
particularly vulnerable to its adverse effects and stress the need to establish a comprehensive
adaptation programme including international support.
2. We agree that deep cuts in global emissions are required according to science, and as
documented by the IPCC Fourth Assessment Report with a view to reduce global emissions so as
to hold the increase in global temperature below 2 degrees Celsius, and take action to meet this
objective consistent with science and on the basis of equity. We should cooperate in achieving
the peaking of global and national emissions as soon as possible, recognizing that the time frame
for peaking will be longer in developing countries and bearing in mind that social and economic
development and poverty eradication are the first and overriding priorities of developing
countries and that a low-emission development strategy is indispensable to sustainable
development.
3. Adaptation to the adverse effects of climate change and the potential impacts of response
measures is a challenge faced by all countries. Enhanced action and international cooperation on
adaptation is urgently required to ensure the implementation of the Convention by enabling and
supporting the implementation of adaptation actions aimed at reducing vulnerability and building
resilience in developing countries, especially in those that are particularly vulnerable, especially
least developed countries, small island developing States and Africa. We agree that developed
countries shall provide adequate, predictable and sustainable financial resources, technology and
capacity-building to support the implementation of adaptation action in developing countries.
4. Annex I Parties commit to implement individually or jointly the quantified economy-wide
emissions targets for 2020, to be submitted in the format given in Appendix I by Annex I Parties
to the Secretariat by 31 January 2010 for compilation in an INF document. Annex I Parties that
are Party to the Kyoto Protocol will thereby further strengthen the emissions reductions initiated
by the Kyoto Protocol. Delivery of reductions and financing by developed countries will be
measured, reported and verified in accordance with existing and any further guidelines adopted
by the Conference of the Parties, and will ensure that accounting of such targets and finance is
rigorous, robust and transparent.
5. Non-Annex I Parties to the Convention will implement mitigation actions, including those
to be submitted to the Secretariat by non-Annex I Parties in the format given in Appendix II by
31 January 2010, for compilation in an INF document, consistent with Article 4.1 and Article 4.7
and in the context of sustainable development. Least developed countries and small island
developing States may undertake actions voluntarily and on the basis of support. Mitigation
actions subsequently taken and envisaged by Non-Annex I Parties, including national inventory
38
reports, shall be communicated through national communications consistent with Article 12.1(b)
every two years on the basis of guidelines to be adopted by the Conference of the Parties. Those
mitigation actions in national communications or otherwise communicated to the Secretariat will
be added to the list in appendix II. Mitigation actions taken by Non-Annex I Parties will be
subject to their domestic measurement, reporting and verification the result of which will be
reported through their national communications every two years. Non-Annex I Parties will
communicate information on the implementation of their actions through National
Communications, with provisions for international consultations and analysis under clearly
defined guidelines that will ensure that national sovereignty is respected. Nationally appropriate
mitigation actions seeking international support will be recorded in a registry along with relevant
technology, finance and capacity building support. Those actions supported will be added to the
list in appendix II. These supported nationally appropriate mitigation actions will be subject to
international measurement, reporting and verification in accordance with guidelines adopted by
the Conference of the Parties.
6. We recognize the crucial role of reducing emission from deforestation and forest
degradation and the need to enhance removals of greenhouse gas emission by forests and agree
on the need to provide positive incentives to such actions through the immediate establishment of
a mechanism including REDD-plus, to enable the mobilization of financial resources from
developed countries.
7. We decide to pursue various approaches, including opportunities to use markets, to
enhance the cost-effectiveness of, and to promote mitigation actions. Developing countries,
especially those with low emitting economies should be provided incentives to continue to
develop on a low emission pathway.
8. Scaled up, new and additional, predictable and adequate funding as well as improved
access shall be provided to developing countries, in accordance with the relevant provisions of
the Convention, to enable and support enhanced action on mitigation, including substantial
finance to reduce emissions from deforestation and forest degradation (REDD-plus), adaptation,
technology development and transfer and capacity-building, for enhanced implementation of the
Convention. The collective commitment by developed countries is to provide new and additional
resources, including forestry and investments through international institutions, approaching
USD 30 billion for the period 2010 2012 with balanced allocation between adaptation and
mitigation. Funding for adaptation will be prioritized for the most vulnerable developing
countries, such as the least developed countries, small island developing States and Africa. In the
context of meaningful mitigation actions and transparency on implementation, developed
countries commit to a goal of mobilizing jointly USD 100 billion dollars a year by 2020 to
address the needs of developing countries. This funding will come from a wide variety of
sources, public and private, bilateral and multilateral, including alternative sources of finance.
New multilateral funding for adaptation will be delivered through effective and efficient fund
arrangements, with a governance structure providing for equal representation of developed and
developing countries. A significant portion of such funding should flow through the Copenhagen
Green Climate Fund.
39
9. To this end, a High Level Panel will be established under the guidance of and accountable
to the Conference of the Parties to study the contribution of the potential sources of revenue,
including alternative sources of finance, towards meeting this goal.
10. We decide that the Copenhagen Green Climate Fund shall be established as an operating
entity of the financial mechanism of the Convention to support projects, programme[s], policies
and other activities in developing countries related to mitigation including REDD-plus,
adaptation, capacity-building, technology development and transfer.
11. In order to enhance action on development and transfer of technology we decide to
establish a Technology Mechanism to accelerate technology development and transfer in support
of action on adaptation and mitigation that will be guided by a country-driven approach and be
based on national circumstances and priorities.
12. We call for an assessment of the implementation of this Accord to be completed by 2015,
including in light of the Conventions ultimate objective. This would include consideration of
strengthening the long-term goal referencing various matters presented by the science, including
in relation to temperature rises of 1.5 degrees Celsius.
Appendix I
Quantified economy-wide emissions targets for 2020
Appendix II
Nationally appropriate mitigation actions of developing country Parties
[Eds. note: The Copenhagen Accord left these two Appendices blank. Under paragraphs 4 and 5,
above, the Parties were given until January 31, 2010 to submit, on a voluntary basis, their
pledges.]
__________

1. Identify the key elements of the Copenhagen Accord:
Does the Accord establish a mitigation goal? If yes, how does it direct the Parties to meet
that goal?
Does the Accord provide funding for adaptation to climate change? Does it provide
funding for developing countries implementation of their NAMAs? Must developing
countries submit pledges or otherwise associate with the Accord to receive funding for
adaptation or mitigation measures?
How does the Accord differ in its approach to monitoring and verifying compliance with
the pledges of developed and developing countries? What is the link, if any, to the
institutions and mechanisms for verification under the Kyoto Protocol, such as the expert
40
review teams established under Article 8 and the compliance mechanism developed by
Decision 27/CMP.1 (see Chapter 5, Section III.E)?
At one point in the negotiations, many thought that the only binding outcome of the
negotiations would be a REDD mechanism. How does the Accord address REDD?
Does the Accord address whether the Parties should move forward with a two-track
approach or a single-track approach?
Does the Accord address the Bali Action Plans call for enhanced action on technology
development and transfer to support action on mitigation and adaptation?
2. The Parties agreed to take[] note of the Copenhagen Accord. Decision 2/CP.15. Yvo de
Boer, the UNFCCC Executive Secretary, has said the phrase is a way of recognizing that
something is there, but not going so far as to associate yourself with it. What legal status does
that give the Accord? Consider the following analysis from Jacob Werksman of the World
Resources Institute:
Is the Copenhagen Accord a binding document? Not in a legal sense. In fact,
the words legally binding were conspicuously removed from earlier drafts of
the Accord by delegations that arent yet ready to enter into a legally binding
instrument. But the Accord is politically binding on those countries that choose
to sign up to it. A number of delegations publically expressed their approval of it
during the final Conference of Parties (COP) plenary session. And the Convention
Secretariat is setting up a process for governments to associate themselves with
the Accord, and the names of their countries will be formally listed alongside the
text.
But politically binding is not the same as legally binding. Politically binding
if anything means that political consequences will flow from its breach
diplomatic responses, efforts at public shaming, withholding of discretionary
funding, etc. In this sense, the Accord can be considered a strong, high level
commitment by the countries that have adhered to it, and many groups are
choosing to interpret it in this sense. . . .
However, the decision to take note of the Copenhagen Accord does not change
the nature of the Agreement; it does not, for example, give it the significance of a
COP decision.
Jacob Werksman, Taking Note of the Copenhagen Accord: What It Means,
http://www.wri.org/stories/2009/12/taking-note-copenhagen-accord-what-it-means (2009).
3. The Accord declares itself to be operational immediately. Given its character, however,
some provisions can be operationalized immediately, while others will require formal actions by
the Parties. For example, the Parties had until January 31, 2010 to submit their pledges, and the
Parties may notify the Secretariat of their willingness to associate with the Accord at any time.
41
These provisions are operational immediately. On the other hand, paragraph 10 calls for the
establishment of a Copenhagen Green Climate Fund as part of the UNFCCCs existing
financial mechanism. This requires further action by the CoP before it can become operational. If
you were the UNFCCC Executive Secretary, what steps would you take to assist in the long-term
implementation of the Accord?
4. The original deadline for countries to associate with the Copenhagen Accord and to
announce their initial pledges was January 31, 2010. As of that date, 55 countries (including 25
non-Annex I Parties not within the EU) had submitted national pledges to cut and limit
greenhouse gases by 2020. As of June 2012, 141 UNFCCC Parties had associated themselves
with the Copenhagen Accord, and more than 80 had entered specific mitigation pledges. Some
examples of country commitments made under the Copenhagen Accord are set forth below.
Appendix I - Quantified Economy-wide Emissions Targets for 2020
Annex I Party
Australia
Canada
Croatia
Quantified economy-wide emissions targets for 2020

-5% up to -15% or -25%
Australia will reduce its greenhouse gas emissions by 25% on 2000 levels by 2020 if the
world agrees to an ambitious global deal capable of stabilising levels of greenhouse gases
in the atmosphere at 450 ppm CO2-eq or lower. Australia will unconditionally reduce our
emissions by 5% below 2000 levels by 2020, and by up to 15% by 2020 if there is a
global agreement which falls short of securing atmospheric stabilisation at 450 ppm CO2eq and under which major developing economies commit to substantially restrain
emissions and advanced economies take on commitments comparable to Australia's.
17%, to be aligned with the final economy-wide emissions target of the United States in
enacted legislation. [eds. note: French language translation omitted]
-5%
Temporary target for Croatia. Upon the accession of Croatia to the European Union, the
Croatian target shall be replaced by arrangement in line with and part of the European
Union mitigation effort.
EU and its 27
Member States
Currently, not all
EU Member States
are Annex I Parties
Japan
Kazakhstan
New Zealand
20%/30%
As part of a global and comprehensive agreement for the period beyond 2012, the EU
reiterates its conditional offer to move to a 30% reduction by 2020 compared to 1990
levels, provided that other developed countries commit themselves to comparable
emission reductions and that developing countries contribute adequately according to their
responsibilities and respective capabilities.
25% reduction, which is premised on the establishment of a fair and effective international
framework in which all major economies participate and on agreement by those
economies on ambitious targets.
15%
New Zealand is prepared to take on a responsibility target for greenhouse gas emissions
reductions of between 10 per cent and 20 per cent below 1990 levels by 2020, if there is a
comprehensive global agreement. This means:
the global agreement sets the world on a pathway to limit temperature rise to not more
than 2 C;
developed countries make comparable efforts to those of New Zealand;
advanced and major emitting developing countries take action fully commensurate with
their respective capabilities;
there is an effective set of rules for land use, land-use change and forestry (LULUCF);
and
there is full recourse to a broad and efficient international carbon market.
42
Base Year
2000
2005
1990
Base year
calculated
according to
decision
7/CP.12
1990
1990
1992
1990
Norway
30-40%
1990
Russian Federation
United States of
America
As part of a global and comprehensive agreement for the period beyond 2012 where major
emitting Parties agree on emissions reductions in line with the 2 degrees Celsius target,
Norway will move to a level of 40% reduction for 2020.
15-25%* [eds. note: Russian language footnote omitted]
In the range of 17%, in conformity with anticipated U.S. energy and climate legislation,
recognizing that the final target will be reported to the Secretariat in light of enacted
legislation.
The pathway set forth in pending legislation would entail a 30% reduction in 2025 and a
42% reduction in 2030, in line with the goal to reduce emissions 83% by 2050.
1990
2005
Appendix II - Nationally appropriate mitigation actions of developing country Parties

(selected Parties)
Non-Annex I
Party
Armenia
Botswana
Brazil
China
Congo
India
Israel
Nationally appropriate mitigation actions

Implementation of The National Program on Energy Saving and Renewable Energy of the Republic of
Armenia (2007)
Increase in energy production based on renewable energy sources
Modernization of thermal power plants
Improvement of energy efficiency in all sectors of the economy
Improvement of energy efficiency in buildings and constructions
Decrease the loss of methane (CH4) during gas transportation and from gas delivery systems
In the transport sector: expansion of the electrical transport and increase of the natural gas share in motor
transports fuel
Decrease in methane emissions from solid municipal waste and waste water
Restoration of degraded forests, afforestation and reducing the volumes of deforestation, sustaining soil CO2
content and ensuring its increase.
Botswana will use the registry of [NAMAs] and recognizes NAMAs are voluntary and not legally binding.
These actions will include sustainable development policies (SD-PAMs) such as:
energy efficiency programmes;
policies in the transport sector;
standards in the building sector;
minimum energy performance standards for household appliances.
Reduction in Amazon deforestation (range of estimated reduction: 564 million tons of CO2eq in 2020);
Reduction in Cerrado deforestation (range of estimated reduction: 104 million tons of CO 2eq in 2020);
Restoration of grazing land (range of estimated reduction: 83 to 104 million tons of CO 2eq in 2020);
Integrated crop-livestock system (range of estimated reduction: 18 to 22 million tons of CO 2eq in 2020);
No-till farming (range of estimated reduction: 16 to 20 million tons of CO 2eq in 2020);
Biological N2 fixation (range of estimated reduction: 16 to 20 million tons of CO2eq in 2020);
Energy efficiency (range of estimated reduction: 12 to 15 million tons of CO 2eq in 2020);
Increase the use of biofuels (range of estimated reduction: 48 to 60 million tons of CO 2eq in 2020);
Increase in energy supply by hydroelectric power plants (range of estimated reduction: 79 to 99 million tons
of CO2eq in 2020);
Alternative energy sources (range of estimated reduction: 26 to 33 million tons of CO 2eq eq in 2020);
Iron & steel (replace coal from deforestation with coal from planted forests (range of estimated reduction: 8
to 10 million tons of CO2eq in 2020);
It is anticipated that these actions will lead to an expected reduction of 36.1% to 38.9% regarding the projected
emissions of Brazil by 2020.
China will endeavor to lower its carbon dioxide emissions per unit of GDP by 40-45% by 2020 compared to
the 2005 level, increase the share of non-fossil fuels in primary energy consumption to around 15% by 2020
and increase forest coverage by 40 million hectares and forest stock volume by 1.3 billion cubic meters by
2020 from the 2005 levels.
Listed 33 specific actions.
India will endeavour to reduce the emissions intensity of its GDP by 20-25% by 2020 in comparison to the
2005 level.
Israel will do its utmost to reduce its CO2 emissions by 20% compared to a business as usual scenario
primarily by calling for a 10% share of renewable energy generation and 20% reduction in electricity
43
consumption.
40% reduction of CO2 emissions below 2009 levels by 2020.
Marshall
Islands
Mexico
Moldova
South Africa
Mexico aims at reducing its GHG emissions up to 30% with respect to the business as usual scenario by 2020,
provided the provision of adequate financial and technological support from developed countries as part of a
global agreement.
A reduction of all GHG emissions of no less than 25% compared with the base year (1990) level by 2020
through the implementation of global economic mechanisms focused on climate change mitigation, in
accordance with the principles and provisions of the Convention.
34% reduction in emissions based on a business as usual emissions trajectory by 2020.
42% reduction in emissions based on a business as usual emissions trajectory by 2025.
Implementation dependent on provisions of financial resources, the transfer of technology and capacity
building support by developed countries.
For a full list of country commitments and other information submitted under the Copenhagen
Accord, see http://unfccc.int/home/items/5262.php. The Climate Action Network is also
maintaining
information
about
country
commitments
to
the
Accord.
See
http://www.usclimatenetwork.org/policy/copenhagen-accord-commitments. What approach did
the Parties adopt, a targets-and-timetables approach, intensity target approach, or a PAMs
approach? Many of the developing countries, including many not reflected in the table above,
submitted long lists of actions that they intend to take. Why do you think they did so? Why do
you think developed countries made their commitments contingent on the action of others? On
the UNFCCCs website, read the full text of the pledges made by China, India, Brazil and South
Africa. Did they formally associate with the Accord? If not, what is the effect of their pledges?
5. Overall, the pledges under the Copenhagen Accord received a mixed response. Yvo de
Boer, the UNFCCC Executive Secretary, said: Greater ambition is required to meet the scale of
the challenge. But I see these pledges as clear signals of willingness to move negotiations
towards a successful conclusion. Press Release, UNFCCC Secretariat, UNFCCC Receives List
of Government Climate Pledges (Feb. 1, 2010). Alden Meyer, policy director at the Union of
Concerned Scientists, stated: This is the first time countries are committed to this [2C] goal,
thats the good news . . . The bad news, of course, is the pledges that have been put on the table
to date dont put us on track to meet that goal. Copenhagen Pledges Fall Short of 2C Target,
Says UN Climate Chief, THE GUARDIAN, Feb. 2, 2010.
Just where do these commitments take us? One analysis concludes that the pledges of all
countries currently associated with the Accord lead to a striking inconsistency with the 2C goal
. . . [and] leave the world heading for a global warming of over 3C above pre-industrial levels
by 2100. Press Release, Ecofys, Ambition of Only 2 Developed Countries Sufficient for
Copenhagen Accord Meeting 2C Target (Feb. 2, 2010). Others agree:
Existing pledges by developed countries, when added together, could
represent a substantial effort for reducing Annex I emissions by 2020 a 12 to
19% reduction of emissions below 1990 levels depending on the assumptions
made about the details of the pledges. But they still fall far short of the range of
emission reductions 25 to 40% that the IPCC notes would be necessary for
stabilizing concentrations of CO2e at 450 ppm, a level associated with a 26 to
78% risk of overshooting a 2C goal. If the pledges are not ratcheted up even
beyond the highest pledges, this analysis shows that the additional reductions
44
required between 2020 and 2050 would be significant, with emissions dropping
roughly 2.5% annually to reach a goal of 80% below 1990 levels by mid-century.
KELLY LEVIN & ROB BRADLEY, COMPARABILITY OF ANNEX I EMISSION REDUCTION PLEDGES 2
(World Resources Institute: Feb. 2010).
6. After the deal was brokered in Copenhagen among the United States, China, and a group
of about 20 other developing and developed countries, President Obama immediately held a
news conference announcing the deal, even before the Conference of the Parties had taken any
action on it. His goal was probably two-fold. First, he no doubt wanted to send a message to the
United States that he was able to obtain concessions from China, India, and Brazil. That message
would signal to the U.S. Senate in particular that any U.S. commitment to reduce emissions
would be coupled with commitments from major developing country emitters and industrial
competitors. Second, he no doubt wanted to announce the deal publicly to ensure that China and
others did not back out of the Accord. While he may have succeeded on those two points, he also
alienated most if not all developing countries that were excluded from the Accords negotiation.
These countries already felt marginalized in the broader negotiations even while many of them
are taking the brunt of climate change impacts. The announcement by President Obama
confirmed that they are not equal partners. It is among the reasons why many Parties refused to
adopt the Accord. Given these international sensitivities on the one hand and domestic politics
on the other, was President Obamas public announcement before the CoP took action ill
advised?
7. The world has arguably never seen a meeting like Copenhagen. Roughly 45,000
individuals representing governments, environmental NGOs, research NGOs, business NGOs,
and other entities registered to attend the Copenhagen meeting. The venue for the meeting, the
Bella Center, however, only has a capacity for 15,000, and many observers who had registered
for and traveled to the meeting were denied access to the Center. The announcement that
President Obama and other leaders would attend the second week also resulted in enhanced
security measures. During the first week, observers easily came and went to and from the Bella
Center. By the end of that week, however, it became clear that many more registered participants
would attend than the Secretariat had planned for. On Monday morning of the second week of
the meeting, thousands of registered participants lined up outside the Bella Center waiting to
receive their security badges that would give them access to the meeting inside. Many people
waited at least eight hours in the cold before they were told no more people could enter. The
same thing happened on Tuesday.
During the second week of the meeting, meeting organizers also began limiting access of
those who had already obtained their security badges. First, the Secretariat restricted access by
requiring groups to obtain secondary badges that allowed them access to the Center.
Delegations of nine observers received four secondary badges, delegations of 40 received 16,
and so on. While those badges gained an observer access to the Center, observers needed yet
another silver badge to get into the plenary meetings. Even then, at one point, NGOs with their
coveted silver badges could not access the plenary room because government delegates filled
the room. Later in the second week, as heads of State arrived, access was further limited. On
Thursday, the Secretariat allowed only 1,000 observers into the building; on Friday, just 90 could
45
enter. As a result of these restrictions, and the problems with registration during the second
week, many people arrived in Copenhagen, tried for two days to register, and then returned home
without ever gaining access to the negotiations. Should the government of Denmark have
notified participants that they might not get in? Consider that at least 30 NGOs had delegations
of more than 100, with Friends of the Earth and International Emissions Trading Association
each registering more than 480 people. Several governmental delegations, including the United
States and Indonesia, had delegations of about 200; Brazils delegation was almost 700 strong.
Should the Climate Change Secretariat or the Parties limit the number of representatives NGOs
may register or the number of delegates that a government may bring? On what basis would you
allocate the right to participate in the negotiations?
8. The Copenhagen Accord represents a potentially different approach to addressing climate
change than that presented in the Kyoto Protocol. Whereas the Kyoto Protocol is designed
around a series of mutually negotiated caps on emissions, the Copenhagen Accord allows each
country to choose its own commitments that may or may not include an economy-wide cap.
What are the advantages or disadvantages of each approach? Which do you think will be
reflected most in future agreements?
__________
C. The Cancun Agreements and the Durban Package

After Copenhagen, no one was quite sure what to expect from the next round of negotiations
in 2010 in Cancun, Mexico. Would the negotiations continue along a path set in Copenhagen,
with the major emitters coming to an agreement without the majority of other Parties? Would the
negotiations continue to be conducted largely behind closed doors away from civil society?
Due to the energy of the Mexican Presidency, Foreign Affairs Minister Patricia Espinoza
who urged the worlds leaders to embrace a more inclusive process, the Parties reached
agreement on a range of issues in a much more inclusive and much less divisive way. This
outcome was by no means assured, as the Parties needed to address the following fundamental
issues:
Would the Copenhagen Accord offer a framework for moving forward or would it be
scrapped in light of its flawed origins and lack of legal status?
In what legal form would countries accept commitments? Would they be incorporated in
a decision of the Parties, a new treaty or protocol, or a second commitment period to the
Kyoto Protocol?
Would commitments be targets and timetables as in the Kyoto Protocol or would they be
based on the bottom up approach of the Copenhagen Accord, in which each Party
proposes its own type of commitment?
Would the commitments of developed and developing country Parties differ, and if so,
how?
46
In the end, the outcome, known as the Cancun Agreements, addressed each of the four
elements of the Bali Action Plan while leaving most options for implementing the Action Plans
four elements on the table. Moreover, it left undecided the exact nature of the legal form of the
agreement. Nonetheless, the meeting was a stark contrast to the drama, chaos and bitter
disappointment of a year earlier in Copenhagen and generally demonstrate[ed] that the U.N.
negotiations can still produce tangible results. Pew Center on Global Climate Change, Sixteenth
Session of the Conference of the Parties to the United Nations Framework Convention on
Climate Change and Sixth Session of the Meeting of the Parties to the Kyoto Protocol (Dec.
2010). The Cancun Agreements also established a base from which further progress would be
made in Durban the following year.
The outcome of the 2011 Durban negotiations, known as the Durban Package, comprises
decisions under both the UNFCCC and the Kyoto Protocol that move the climate agenda forward
on adaptation, finance, technology transfer, and capacity building. Where the Cancun
Agreements established a framework for measurement, review and verification (MRV) of
mitigation pledges, the Durban Package created a comprehensive set of guidelines for MRV.
Similarly, where the Cancun Agreements established a framework for new institutions to address
finance, technology, and adaptation, the Durban Package, together with decisions made in Doha
in 2012, more or less operationalize these new institutions.
Still, much more needs to be done. For that reason, an important part of the Durban Package
was the adoption of the Durban Platform, which marks the next chapter in the climate change
negotiations. The Durban Platform is discussed in Section D below.
1. Shared Vision
The Parties have fought over the scope of a shared vision for the UNFCCC since the work of
the AWG-LCA began. Some Parties have wanted to set specific target CO2 concentrations at 300
or 350 ppm or set specific temperature targets, such as limiting temperature increases to 1 or 1.5
degrees Celsius above pre-industrial levels. A variety of Parties have also called for a series of
emissions targets and timetables, including one proposal to reduce GHG emissions by 95 percent
by 2050 and another proposal for Annex I Parties to reduce their emissions more than 100
percent.
Other proposals on the scope of a shared vision go beyond setting targets by embracing the
UNFCCCs goals of common but differentiated responsibilities and equity. For example, the
G77 and China has sought an explicit reference to the historical contribution for the
accumulation of GHGs by Annex I Parties and their consequent need to show leadership by
taking on ambitious mitigation commitments. Other proposals have sought to set any targets
based on equitable access to global atmospheric space on a per capita basis. Still other proposals
have sought to add goals for finance, capacity building, and adaptation.
UNFCCC, 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 (2010)
47
I. A shared vision for long-term cooperative action

1. Affirms that climate change is one of the greatest challenges of our time and that all Parties
share a vision for long-term cooperative action in order to achieve the objective of the
Convention under its Article 2, including through the achievement of a global goal, on the basis
of equity and in accordance with common but differentiated responsibilities and respective
capabilities; this vision is to guide the policies and actions of all Parties, while taking into full
consideration the different circumstances of Parties in accordance with the principles and
provisions of the Convention; the vision addresses mitigation, adaptation, finance, technology
development and transfer, and capacity-building in a balanced, integrated and comprehensive
manner to enhance and achieve the full, effective and sustained implementation of the
Convention, now, up to and beyond 2012; . . .
3. Recognizes that warming of the climate system is unequivocal and that most of the
observed increase in global average temperatures since the mid-twentieth century is very likely
due to the observed increase in anthropogenic greenhouse gas concentrations, as assessed by the
Intergovernmental Panel on Climate Change in its Fourth Assessment Report;
4. Further recognizes that deep cuts in global greenhouse gas emissions are required
according to science, and as documented in the Fourth Assessment Report of the
Intergovernmental Panel on Climate Change, with a view to reducing global greenhouse gas
emissions so as to hold the increase in global average temperature below 2C above preindustrial
levels, and that Parties should take urgent action to meet this long-term goal, consistent with
science and on the basis of equity; also recognizes the need to consider, in the context of the first
review, as referred to in paragraph 138 below, strengthening the long-term global goal on the
basis of the best available scientific knowledge, including in relation to a global average
temperature rise of 1.5C;
5. Agrees, in the context of the long-term goal and the ultimate objective of the Convention
and the Bali Action Plan, to work towards identifying a global goal for substantially reducing
global emissions by 2050, and to consider it at the seventeenth session of the Conference of the
Parties;
6. Also agrees that Parties should cooperate in achieving the peaking of global and national
greenhouse gas emissions as soon as possible, recognizing that the time frame for peaking will
be longer in developing countries, and bearing in mind that social and economic development
and poverty eradication are the first and overriding priorities of developing countries and that a
low-carbon development strategy is indispensable to sustainable development; in this context,
further agrees to work towards identifying a time frame for global peaking of greenhouse gas
emissions based on the best available scientific knowledge and equitable access to sustainable
development, and to consider it at the seventeenth session of the Conference of the Parties; . . .
8. Emphasizes that Parties should, in all climate change related actions, fully respect human
rights; . . .
48
10. Realizes that addressing climate change requires a paradigm shift towards building a lowcarbon society that offers substantial opportunities and ensures continued high growth and
sustainable development, based on innovative technologies and more sustainable production and
consumption and lifestyles, while ensuring a just transition of the workforce that creates decent
work and quality jobs[.]
__________

1. The Review Mechanism. The Pacific Small Island Developing States have aggressively
sought a goal of limiting temperature increases to well below 2 degrees Celsius. In paragraph 12
of the Copenhagen Accord, these countries successfully negotiated for a possible goal of 1.5
degrees Celsius. Paragraph 4 of the Cancun Agreements takes the goal a step further by calling
for a review of the long-term global goal. Decision 1/CP.16 of the Cancun Agreements further
elaborates on the Review Mechanism as follows:
138. Decides to periodically review the adequacy of the long-term global goal referred to in
paragraph 4 above, in the light of the ultimate objective of the Convention, and overall progress
towards achieving it, in accordance with the relevant principles and provisions of the
Convention;
139. Also decides that:
(a) This review should be guided by the principles of equity, and common but
differentiated responsibilities and respective capabilities and take into account, inter alia:
(i) The best available scientific knowledge, including the assessment reports of the
Intergovernmental Panel on Climate Change;
(ii) Observed impacts of climate change;
(iii) An assessment of the overall aggregated effect of the steps taken by Parties in
order to achieve the ultimate objective of the Convention;
(iv) Consideration of strengthening the long-term global goal, referencing various
matters presented by the science, including in relation to temperature rises of 1.5 C;
(b) The first review should start in 2013 and should be concluded by 2015;
(c) The Conference of the Parties shall take appropriate action based on the review;
Some of the same issues relating to the scope of the shared vision have emerged with respect
to the scope of the Review Mechanism. Many in the G77 and China want the shared vision to
review actual implementation of the Kyoto Protocol or assess implementation of financial
obligations. The Pacific Small Island Developing States want a narrower scope focused on what
the temperature goal should be in order to avoid the worst impacts of climate change. Based on
the language excerpted above, which Parties have the stronger argument? Do you think the
Review Mechanism will be valuable for determining the long-term global goal? The IPCC
49
expects to finish its fifth assessment in 2014. How will the Review Mechanism differ from the
fifth assessment?
2. The Parties did not advance the work on shared vision in Durban in 2011 or Doha in 2012,
although they did agree to continue to work towards identifying a time for peaking GHG
emissions. However, they also decided that neither a goal for reducing GHG emissions
substantially by 2050 nor the time frame for peaking emissions can be undertaken in the
abstract. Decision 2/CP.17, Outcome of the Work of the Ad Hoc Working Group on Long-term
cooperative Action under the Convention, paras. 23 (2011). What do you think the Parties mean
by the phrase in the abstract?
3. To what extent, if any, does the shared vision of the Cancun Agreements deviate from the
shared vision found in the Copenhagen Accord?
__________
2. Mitigation in the UNFCCC Track
In Cancun, the Parties largely put aside the question of the specific content and ambition of
mitigation pledges and focused more on what to do with the pledges made in the Copenhagen
Accord. The Pacific Small Island Developing States, in particular, did not want to see the
Copenhagen pledges adopted at all, believing that they were too weak. For these countries, the
Copenhagen pledges were only acceptable as a starting point for discussing more ambitious
pledges. The United States argued that new negotiations to adopt more ambitious pledges were
inappropriate because the Parties first needed to implement the pledges embodied in the
Copenhagen Accord.
The compromise reached by the Parties derives directly from the Copenhagen Accord. The
Parties took note of the pledges to be implemented by both Annex I Parties and non-Annex I
Parties. Decision 1/CP.16, paras. 36, 49. These pledges are included in separate documents,
FCCC/SB/2011/INF.1 (for Annex I Parties) and FCCC/AWGLCA/2011/INF.1 (for non-Annex I
Parties). The pledges themselves are identical to the Copenhagen Accord pledges. In addition,
developed country Parties are urged to increase the ambition of their economy-wide emission
reduction targets and asked to develop low-carbon development strategies or plans Id. at paras.
37, 45.
Annex I Parties are also required to provide enhanced financial, technological, and capacitybuilding support to non-Annex I Parties for implementing their NAMAs. In addition, the Parties
established a registry to record nationally appropriate mitigation actions seeking international
support and to facilitate matching of finance, technology and capacity-building support for these
actions. Decision 1/CP.16, para. 53. The Secretariat will record and regularly update in the
registry the information provided by Parties on:
(a) Nationally appropriate mitigation actions seeking international support;
(b) Support available from developed country Parties for these actions;
(c) Support provided for nationally appropriate mitigation actions;
50
A second issue that the Parties needed to address was how to distinguish developed country
from developing country obligations with respect to both the nature of their pledges and how to
measure, review, and verify (MRV) compliance with their pledges. The question of the form and
nature of mitigation pledges has become inextricably entwined with MRV as the Parties at
least many major emitting Parties seek to design a system based on pledges that may or may
not be legally binding while also obtaining assurances that Parties will actually implement their
pledges.
a. MRV for Annex I Parties

The Cancun Agreements include MRV provisions for Annex I Parties that relate not only to
mitigation, but also to the provision of financial, technological, and capacity-building support to
developing country Parties. With respect to measurement, developed countries should submit
annual greenhouse gas inventories and inventory reports and biennial reports on their progress in
achieving emission reductions. These documents should include information on mitigation
actions to achieve their quantified economy-wide emission targets and emission reductions
achieved, projected emissions, and the provision of financial, technology and capacity-building
support to developing country Parties. In addition, they shall submit supplementary
information on the achievement of quantified economy-wide emission reductions. Decision
1/CP.16, para. 40. To measure and report on mitigation pledges, each Annex I Party, beginning
in 2014, must submit a biennial report that provides information on its mitigation actions and
progress towards meeting its targets. Decision 2/CP.17, Outcome of the Work of the Ad Hoc
Working Group on Long-term Cooperative Action under the Convention, para. 13 (2011).
In the Cancun Agreements, the Parties also decided to
(1) establish guidelines for the review of information in the national communications of
developed country Parties with respect to progress in achieving their emissions
reductions as well as the provision of financial, technology and capacity-building support
to developing country Parties; and
(2) a transparent verification process, called International Assessment and Review (IAR),
for international assessment of emissions and removals related to quantified economywide emission reduction targets under the Subsidiary Body for Implementation.
Decision 1/CP.16, paras. 42, 44.
While the Cancun Agreements lay the framework for MRV of mitigation pledges, the Durban
Package provides the details for verification of the mitigation efforts of Annex I Parties.
DECISION 2/CP.17
Annex II Modalities and procedures for international assessment and review
1. The overall objectives of the international assessment and review (IAR) process are to
review the progress made in achieving emission reductions and assess the provision of financial,
51
technological, and capacity-building support to developing country Parties, and to assess

emissions and removals related to quantified economy-wide emission reduction targets under the
Subsidiary Body for Implementation (SBI), taking into account national circumstances, in a
rigorous, robust and transparent manner, with a view to promoting comparability and building
confidence. * * *
3. The IAR process will be conducted in the following steps:
(a) A technical review of biennial reports, where relevant in conjunction with the annual
greenhouse gas (GHG) inventories, and national communications of developed country
Parties, which will result in an individual review report for each developed country Party;
(b) A multilateral assessment of developed country Parties progress in implementation
towards the achievement of emission reductions and removals related to their quantified
economy-wide emission reduction targets. * * *
6. Each developed country Partys biennial report will be reviewed, where relevant in
conjunction with the annual GHG inventory and national communication review processes, as
follows:
(a) The technical review will be conducted in accordance with existing and revised
guidelines and procedures under the Convention;
(b) The technical expert review will examine the consistency of the annual GHG
inventory with the biennial report and national communication but will not include in-depth
examination of the inventory itself;
(c) The Party concerned can respond to the questions or suggestions of the expert review
team as well as propose and share any additional information or views;
(d) . . . [T]he expert review teams should also review progress in emission reductions and
removals related to the quantified economy-wide emission reduction target. Additional
experts may be added to the review team where necessary;
7. The output of the technical review will be a technical review report building on existing
reporting standards and including an examination of the Partys progress in achieving its
economy-wide emission reduction target.
8. The multilateral assessment will be carried out for each developed country Party on the
basis of the following:
(a) The technical review report referred to in paragraph 7 above and any other relevant
review reports of the annual GHG inventory and national communication;
(b) The biennial report, the national GHG inventory, including the national inventory
report, and the national communication;
52
(c) Supplementary information on the achievement of the Partys quantified economywide emission reduction target, including on the role of land use, land-use change and
forestry, and carbon credits from market-based mechanisms;
9. Each developed country Party will be assessed during an SBI session.
10. The multilateral assessment should entail the following:
(a) Any Party may submit electronically through the secretariat written questions to the
Party concerned in advance of the international assessment;
(b) The Party under assessment should endeavour to respond to those questions, through
the secretariat, within two months. The secretariat will compile the questions and answers
and publish them on the UNFCCC website;
(c) During the SBI session, developed country Parties will undergo the assessment with
the participation of all Parties. The Party under review may make a brief oral presentation,
which will be followed by oral questions by Parties and responses by the Party under review.
11. The outputs of the international assessment for each Party will include the following: a
record prepared by the secretariat which includes in-depth review reports, the summary report of
the SBI, questions submitted by Parties and responses provided, and any other observations by
the Party under review that are submitted within two months of the working group session of the
SBI.
12. The SBI will forward conclusions based on the record referred to in paragraph 11 above
to relevant bodies under the Convention as appropriate.
__________
b. MRV for Non-Annex I Parties

The Cancun Agreements elaborate different MRV provisions for developing country Parties,
the non-Annex I Parties:
Internationally supported mitigation actions will be measured, reported, and verified

domestically and will be subject to international measurement, reporting, and verification
in accordance with guidelines to be developed by the Parties.
Domestically supported mitigation actions, in contrast, will be measured, reported, and

verified domestically only, but in accordance with general guidelines to be developed by
the Parties.
Non-Annex I Parties will be expected to complete biennial update reports on GHG emissions
and control measures consistent with their capabilities and level of financial support received for
53
reporting, by December 2014, although Least Developed States (LDCs) and Small Island
Developing States may submit reports at their discretion. Decision 2/CP.17, para. 41.
Moreover, the Subsidiary Body for Implementation was charged with conducting
international consultations and analysis of biennial reports . . . in a manner that is non-intrusive,
non-punitive and respectful of national sovereignty. This process, known as international
consultation and analysis (ICA), will aim to increase transparency of mitigation actions and
their effects, through analysis by technical experts in consultation with the Party concerned and
through a facilitative sharing of views, and will result in a summary report. Decision 1/CP.16,
paras. 6163.
As with MRV for Annex I Parties, the Durban Package fleshed out the requirements for
review and verification for non-Annex I Parties.
Decision 2/CP.17
Annex IV Modalities and guidelines for international consultation and analysis
1. International consultation and analysis (ICA) of biennial update reports under the
Subsidiary Body for Implementation (SBI) will be conducted in a manner that is nonintrusive,
non-punitive and respectful of national sovereignty; ICA will aim to increase the transparency of
mitigation actions and their effects, through analysis by technical experts in consultation with the
Party concerned and through a facilitative sharing of views, and will result in a summary report.
2. Discussion on the appropriateness of such domestic policies and measures is not part of the
process.
3. The ICA process will consist of the following two steps:
(a) A technical analysis of the biennial update reports submitted by Parties not included
in Annex I to the Convention either, as a summary of parts of their national communication
in the year in which the national communication is presented or as a standalone update
report, by a team of technical experts in consultation with the Party, and will result in a
summary report. The information considered should include the national greenhouse gas
inventory report, information on mitigation actions, including a description of such actions,
an analysis of their impacts and the associated methodologies and assumptions, the progress
made in their implementation and information on domestic measurement, reporting and
verification, and on support received.
(b) A facilitative sharing of views, which will have as input the biennial update report and
summary report referred to in paragraph 3(a) above.
4. The information referred to in paragraph 3(a) above shall be the input for the technical
analysis by a team of technical experts. Additional technical information may be provided by the
Party concerned. Prior to finalizing the report, the draft summary report prepared by the team of
technical experts will be shared with the Party concerned for review and comment over the
54
following three months, in order to respond to and incorporate Party comments in the report. The
summary report, incorporating comments from the Party, shall be finalized in consultation with
the Party concerned and be presented to the SBI.
5. The summary report referred to in paragraph 4 above will be noted by the SBI in its
conclusions and shall be made publicly available on the UNFCCC website.
6. The SBI shall, at regular intervals, convene a workshop for the facilitative exchange of
views, open to all Parties, for all Parties for which there is a biennial update report and a final
summary report. Parties will be allowed to submit written questions in advance.
7. The facilitative exchange of views among Parties will consist of a one- to three-hour
session for each Party or group of Parties. Parties may request to go individually or in a group of
up to five Parties. The session will consist of a brief presentation by the Party or Parties
concerned on their biennial update report, followed by oral questions and answers among Parties.
8. The outcome of the ICA will be a summary report and a record of the facilitative sharing
of views.
__________

1. Take a close look at how the Parties distinguished the mitigation commitments of
developed countries from developing countries in the Cancun Agreements and Durban Package.
How do they differ?
2. The Parties to the Kyoto Protocol addressed the issue of pledges the same way as the
UNFCCC Parties did by taking note of those pledges in an informational document.
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 (2010). Again, the pledges of each Party are identical to those in the Copenhagen Accord
pledges. By taking note of the pledges, have the Parties addressed the concern of the Pacific
Small Island Developing States that the Copenhagen pledges are too weak? What language
would you have chosen to ensure that Parties did not pledge less than they did in Copenhagen,
but which also keeps the door open for increasing the ambition of those pledges?
3. Decision 1/CP.16 establishes a registry. What are its functions? Why do you think
developing countries want this registry?
4. The Parties established two different frameworks for MRV of mitigation pledges. With
respect to the V (verification) in MRV, how does IAR differ from ICA? Why is it necessary to
have two different verification systems one for developed countries and one for developing
countries? How do IAR and ICA differ from the Kyoto Protocols compliance regime? See
Chapter 5, Section III.E.
55
5. The Parties have made important strides concerning MRV of the pledges made in Cancun.
Still, several important steps remain. For example, the Parties have not adopted voluntary
domestic MRV guidelines or finalized the ICA regime for developing countries, because the
Parties have different views on how it should be conducted and who should conduct it. In
addition, the Parties adopted a common reporting format in Doha to track emissions, climate
actions, and support in a more transparent and verifiable manner. They also resolved two other
important reporting issues:
How to deal with emission allowances issued from market mechanisms
outside the UNFCCC framework (such as bilateral offset mechanisms and
sectoral crediting mechanisms, which have been discussed but not yet agreed
to under the Convention). Countries finally agreed to allow for reporting of such
emission units, but without pre-judging how this would be treated and
accounted against targets. Its unclear what this will mean in practice, nor how it
may affect the accounting of emissions towards targets.
How detailed and standardised the reporting of climate finance and other
means of support should be. Countries made progress in enhancing how to
report public finance, technology transfer, and capacity building. However, they
agreed that they need further methodological work and considerations on how
best to report private finance. This should be taken into account for the next
revision of the reporting guidelines, as well as into the first biennial assessment of
climate finance flows by the Standing Committee.
Although not perfect, this is a relatively good outcome that will enable Parties to
start working on their enhanced national communications and biennial reports
within the next two years.
Jennifer Morgan, Reflections on COP 18 in Doha: Negotiators Made Only Incremental
Progress, WRI INSIGHTS (World Resources Institute, Dec. 14, 2012).
6. Response Measures. The members of the Organization of the Petroleum Exporting
Countries (OPEC) have been particularly fearful that widespread mitigation of CO2 emissions
will harm their economies by reducing the use of oil and gas products. The existing literature
supports the view of OPEC countries that mitigation measures will harm their economies:
GHG mitigation is expected to reduce oil prices, but the regional effects on GDP
and welfare are mixed. . . .
The highest modelling costs for implementing the Kyoto Protocol . . . for action in
all Annex I countries are for OPEC: a 13% loss of oil revenues . . . The outcome
for OPEC is that its share of the world oil market falls compared to baseline
projections. . . . All model estimates . . . show that OPEC countries will see an
increase in demand for oil but that this increase will be slowed by mitigation
efforts following the Kyoto Protocol.
56
The use of OPEC market power could reduce negative effects, but this is
uncertain. OPECs World Energy Model assumes that OPEC production remains
at baseline levels in the scenarios. This results in excess market supplies, since oil
demand will be reduced. This leads to an estimate of OPEC losses of 63 billion
US$ a year or about 10% of GDP, compared with 2% if supply is restricted in line
with demand. Another scenario estimates the effect of an oil-price protection
strategy, assuming that all major oil-producing countries in non-Annex B and in
the former Soviet Union act together with OPEC. The conclusion is that OPEC
losses would be substantially reduced. Another interesting feature of these results
is that the losses as a percentage of 1999 GDP vary substantially across
economies: from between 3.3% for Qatar to 0.07% for Indonesia by 2010.
Awerbuch and Sauter assess the effect of a 10% increase in the share of
renewables in global electricity generation (which would reduce CO2 by about 3%
by 2030, compared with 16% in the IEA scenario). They suggest that the global
oil price reduction would be in the range of 3 to 10%, with world GDP gains of
0.2 to 0.6%. Once again, the substantial increase expected in oil exporters
revenues would be reduced, although oil-importing countries would benefit.
Nearly all modelling studies that have been reviewed show more pronounced
adverse effects on countries with high shares of oil output in GDP than on most of
the Annex I countries taking the abatement measures.
Terry Barker et al., 2007: Mitigation from a Cross-sectoral Perspective, in CLIMATE CHANGE
2007: MITIGATION: CONTRIBUTION OF WORKING GROUP III TO THE FOURTH ASSESSMENT REPORT
OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 668 (B. Metz et al. eds., 2007). As a
consequence, OPEC countries successfully negotiated the inclusion of the following language in
Decision 1/CP.16 on what has been called response measures:
88. Urges Parties, in the implementation of measures to mitigate climate change,
to take into consideration the economic and social impacts of response measures
and the needs of Parties, in particular developing country Parties, impacted by
response measures, consistent with relevant provisions of the Convention;
89. Also urges developed country Parties to strive to implement policies and
measures to respond to climate change in such a way as to avoid negative social
and economic consequences for developing country Parties, taking into account
Article 3 of the Convention, and to assist these Parties to address such
consequences by providing support, including financial resources, transfer of
technology and capacity-building, in accordance with Article 4 of the Convention,
to build up the resilience of societies and economies negatively affected by
response measures;
Are the views of the OPEC countries justified? Is there any difference in OPEC countries
being compensated for lost oil and gas revenues and developing countries being compensated for
reducing emissions from deforestation and forest degradation? See Chapter 8, Section IV for a
57
discussion of the compensation mechanism known as REDD Reducing Emissions from

Deforestation in Developing Countries.
7. Forests and Land Use. During the Cancun and Durban meetings, the Parties also made
important decisions regarding forests and land use, including laying the groundwork for REDD+
a compensation scheme for reducing emissions from deforestation in developing countries.
These topics are covered in Chapter 8.
__________
3. Mitigation in the Kyoto Protocol Track

The G77 and China vigorously advocated, as a fundamental negotiating position, for a
second commitment period to the Kyoto Protocol. They maintained this position even as the
United States, Canada, Japan, and Russia, and then later New Zealand, made clear that they
would not join it. That left the EU and other European countries such as Switzerland and
Norway, along with Australia, as the only significant emitters willing to participate in a second
commitment period.
In Cancun as part of the Kyoto Protocol negotiations under the AWG-KP, the Parties did not
adopt new targets and timetables for the second commitment period, but instead took note of
their Copenhagen pledges in the Cancun Agreements. Thus, the second commitment period is no
different from the pledges taken as part of the UNFCCC negotiations track. In Durban, the Kyoto
Protocol Parties again did not adopt formal amendments to the Kyoto Protocol. This time, they
took note of the intention of Annex I Parties to convert their pledges into quantified
emission limitation and reduction objectives (QELROs); this step is needed to make pledges
comparable as some countries have chosen different base years from which to measure
reductions or used different assumptions for calculating emission reductions. Moreover, the
Parties had yet to agree on whether the second commitment period would run from 2013 to 2017
or 2013 or 2020. Decision 1/CMP.7, paras. 1, 34.
Finally in Doha, the Kyoto Protocol Parties reached agreement on a second commitment
period to run from 2013 through 2020, thus aligning with the Cancun pledges made under the
AWG-LCA track. The Annex I Parties participating in the Kyoto Protocols second commitment
period, however, represent only 15% of global GHG emissions.
To reach agreement on the second commitment period, Parties had to resolve several thorny
issues. Perhaps most significantly was the question of whether Kyoto Protocol Parties not
participating in the second commitment period (i.e., Canada, Japan, Russia, and New Zealand)
would be eligible to use the Protocols flexibility mechanisms, including the Clean Development
Mechanism (CDM). The Kyoto Protocol Parties agreed that these Parties could participate in
CDM and joint implementation projects, but that they would not be able to transfer or
acquire the resulting certified emissions reductions or emissions reduction units to meet their
pledges. Only Parties accepting the second commitment period target may eligible to use
certified emission reductions (CERs) to contribute towards compliance with a commitment.
FCCC/KP/CMP/2012/L.9, Outcome of the Work of the Ad Hoc Working Group on Further
commitments for Annex I Parties under the Kyoto Protocol, paras. 1315 (Dec. 8, 2012).
58
The Parties also resolved the issue of how many surplus emission allowances a country could
carry over from the first to the second commitment period. Article 3(13) of the Kyoto Protocol
allows countries to carry over any unused (i.e. surplus) Assigned Amount Units (AAUs) into the
next commitment period. As a result of insufficient reduction commitments in the first
commitment period, some Parties possess vast surpluses of emission allowances Assigned
Amount Units or AAUs because they exceeded their targets. By some estimates, the total
surplus by the end of 2012 could be as many as 13 billion AAUs, representing 13 billion metric
tons of CO2eq (13 MT CO2eq), with Russia, Ukraine, and Poland accounting for more than half
of the surplus. POINT CARBON, CARRY-OVER OF AAUS FROM CP1 TO CP2: FUTURE IMPLICATIONS
FOR THE CLIMATE REGIME, at Exhibit A (Sept. 2012). Many feared that allowing the carryover of
these surplus emissions into the second commitment period would jeopardize the Kyoto
Protocols environmental integrity.
Ultimately, the Kyoto Protocol Parties decided to restrict the use of surplus AAUs as follows:
Annex I Parties with a target in the second commitment period must establish a previous
period surplus reserves account in its national registry. If the emissions placed in this
account are less than a Partys assigned amount, then the surplus may be carried over into
the second commitment period. However, two limitations apply:
(1) CERs and emission reduction units (ERUs) may be carried over to the second
commitment period, but only up to a maximum for each unit type of 2.5 percent
of the Partys assigned amount; and
(2) AAUs in a Partys national registry that have not been retired or cancelled may be
added to the partys second commitment period assigned amount and transferred
to its previous period surplus reserve account;
In addition, a Party with surplus CERs, ERUs, or AAUs may use this surplus to fulfill its
commitment only if its emissions exceed its assigned amount.
Lastly, Parties may acquire units from other Parties previous surplus reserve accounts,
up to 2 percent of their first commitment period assigned amounts.
Id. at paras. 2326. Despite spending considerable time negotiating these rules, most Annex I
Parties agreed not to use them to meet their commitments in the second commitment period.
Australia, the EU and its member States, Japan, Liechtenstein, Monaco, Norway, and
Switzerland all declared that they will not purchase or use surplus AAUs carried over from the
first commitment period. Id. at Annex II.
The second commitment period will enter into force when three-fourths of the Kyoto
Protocol Parties ratify the amendments. Since the timeframe for the second commitment period
has already begun and the second commitment period has not yet entered into force, the Parties
agreed to apply provisionally the amendments to the Kyoto Protocol implementing the second
commitment period. Provisional application is a legal device, permitted by the Article 25 of
59
the Vienna Convention on the Law of Treaties, that permits Parties to give legal effect to the
treaty as if it had entered into force. Parties will identify whether they will provisionally apply
the amendments in their instrument of ratification. Parties that are not able to provisionally apply
the amendments are asked to implement the amendments in a manner consistent with their
national legislation or domestic processes pending entry into force of the Kyoto Protocol. Id. at
paras. 56.
__________

1. Prior to the meetings in Durban and Doha, several developed country Parties made clear
that they would never participate in a second commitment period. In addition, everyone agrees
that a third commitment period is, at best, highly unlikely. Moreover, everyone understood that
Annex I Parties would not make any commitments in a second commitment period that differed
from those made in the AWG-LCA track. As such, why do you think that the G77 and China
insisted on a second commitment period? At this point, is there any value in a second
commitment period when the second commitment period targets mirror the pledges made in the
UNFCCC track?
2. The commitment gap refers to the period between the expiration of the Kyoto Protocols
first commitment period and the entry into force of the second commitment period. In Cancun,
Durban and Doha, Parties searched diligently for a solution to the commitment gap to ensure that
the obligations agreed to for a second commitment period would be legally binding. As
described above, they also needed a solution that would clarify how various aspects of the Kyoto
Protocol would operate. For example, assigned amounts, which are defined by Article 3.7 of the
Kyoto Protocol, only relate to the first commitment period. As a consequence, an Annex I Party
would not have an assigned amount if amendments are not entered into force that extend the
Protocols provisions for assigned amounts to a second commitment period. Without assigned
amounts, the Parties have no obligation to ensure that their emissions do not exceed an assigned
amount under Article 3.1 of the Protocol. Without a commitment under Article 3.1, there is
likely no duty to maintain a national system for estimating emissions and removals of GHGs
under Article 5. In addition, it is also unclear whether Parties can participate in the Clean
Development Mechanism, joint implementation, and emissions trading in the absence of a
legally binding commitment period. See Note by the Secretariat, Legal Considerations relating
to a Possible Gap between the first and Subsequent Commitment Periods,
FCCC/KP/AWG/2010/10 (July 20, 2010).
Developing countries insisted that all Annex I Parties agree to provisionally apply the
amendments implementing the second commitment period. They noted that States had used
provisional application on numerous occasions, including with respect to the 1947 General
Agreement on Tariffs and Trade and the Convention on Long-range Transboundary Air
Pollution. In Durban, however, some Parties claimed that they could not provisionally apply
amendments to the Kyoto Protocol. Did the Parties find a reasonable solution to this problem? Is
this essentially a gentlemens agreement to implement the second commitment period
amendments?
60
3. The Parties have proposed the addition of a large number of new GHGs to Annex A of the
Kyoto Protocol. In the end, they agreed to add just one new GHG nitrogen trifluoride (NF3).
NF3 has a global warming potential of roughly 17,000 over 100 years. It is used in the plasma
etching of silicon wafers, the manufacture of liquid-crystal flat-panel screens, and, ironically,
silicon-based thin film solar cells.
__________
4. Adaptation
With the Cancun Agreements, adaptation received equal billing with mitigation. Not only did
the Parties agree to ensure that financing is split evenly between mitigation and adaptation (see
section 6, below), but they also established the Cancun Adaptation Framework to enhance
adaptation efforts by all countries. As part of the Cancun Adaptation Framework, the Parties will
plan and implement adaptation actions, including a process to help least developed countries
(LDCs) develop and implement national adaptation programs of action (NAPAs). Moreover, the
Parties created an Adaptation Committee to provide technical support to Parties, facilitate
sharing of information and adaptation good practices, and make recommendations to the Parties
on finance, technology, and capacity-building on adaptation-related matters. Decision 1/CP.16,
paras. 1124.
In Doha, the Parties approved a new set of technical guidelines for developing National
Adaptation Plans (NAPs). In contrast to NAPAs, which were designed to be short-term, projectbased, and limited to least developed countries, NAPs are designed to be part of a long-term,
flexible, and iterative planning processes to help build adaptive capacity and respond to climate
change. Decision 12/CP.18, National Adaptation Plans (2012).
__________
5. Technology Transfer
In the Cancun Agreements, the Parties took further steps to facilitate the development and
transfer of technology to developing countries for mitigation and adaptation. The Parties
developed a framework for addressing technology development and transfer, by establishing a
Technology Executive Committee to provide an overview of the technological needs of the
Parties and to recommend actions to promote technology development and transfer. Decision
1/CP.16, paras. 117, 121. The Parties also created a Climate Technology Centre and Network to
facilitate a network of national, regional, sectoral, and international technology networks,
organizations, and initiatives. The Network will also stimulate and encourage the development
and transfer of existing and emerging technologies through private and public partnerships. Id. at
paras. 117, 123. See also Decision 2/CP.17, paras. 13343, Annex VII (2011).
__________
6. Finance
The Cancun Agreements largely adopted the finance provisions of the Copenhagen Accord.
The developed countries collectively committed to provide new and additional resources
through international institutions, approaching USD 30 billion for the period 20102012, with a
61
balanced allocation between adaptation and mitigation. In addition, the Parties agreed that
scaled-up, new and additional, predictable and adequate funding shall be provided to
developing country Parties, taking into account the urgent and immediate needs of developing
countries that are particularly vulnerable to the adverse effects of climate change. To this end,
developed country Parties committed, in the context of meaningful mitigation actions and
transparency on implementation, to a goal of mobilizing jointly USD 100 billion per year by
2020 to address the needs of developing countries. Decision 1/CP.16, paras. 9698.
In addition, the Cancun Agreements established the Green Climate Fund to support
adaptation and mitigation projects, programs, policies and other activities in developing country
Parties. The Green Climate Fund will provide a significant portion of the $100 billion per year in
long-term adaptation and mitigation finance that developed countries have pledged to mobilize
by 2020. While the substantive mandate of the Green Climate Fund did not draw much attention
from the Parties, its institutional arrangements did. The Parties agreed to ensure that the [Green
Climate Fund] is accountable to and functions under the guidance of the Conference of the
Parties and that it would be governed by a Board of 24 members, composed of an equal number
of members from developing and developed country Parties. The Cancun Agreements further
called for a trustee to manage the Funds assets and an independent secretariat. Because the
Parties could not agree, they created a Transitional Committee of 40 members to design the
Green Climate Fund and propose a trustee and an independent secretariat.
Despite a large number of multilateral funds from which to model the Green Climate Fund,
the Parties as a whole found it difficult to agree on the design of the Fund. Some Parties, such as
the United States, wanted the Global Environment Facility (GEF) to be the new Funds
secretariat with the World Bank acting as the trustee. According to the United States, the GEF
has vast financial expertise, which the Fund should use. Developing countries, however,
adamantly opposed the GEF as secretariat, believing that GEF staff have not responded
adequately to developing country concerns and requests in other contexts, including the Kyoto
Protocols Adaptation Fund.
In Durban, the Parties resolved some but not all of these issues. The Parties agreed to give
the Green Climate Fund the juridical personality and legal capacity to, at a minimum, contract,
acquire and dispose of immovable and movable property, and to institute legal proceedings.
Decision 3/CP.17, Launching the Green Climate Fund, paras. 12(a) (2011). Developing
countries also prevailed and obtained an independent secretariat that answers to the GCFs
Board, which itself is accountable to the Conference of the Parties. However, unable to agree on
an interim secretariat to provide services until the new secretariat is operational, the Parties
reached an awkward compromise members of the GEF and the UNFCCC secretariat will
jointly provide interim secretariat services acting as an autonomous unit within the UNFCCC
secretariat premises. The GCFs Board later determined that the GCF would be located in
Sondgo, Republic of Korea (South Korea), but the Parties have yet to provide it with any funds
to finance climate change projects.
__________
7. Loss and Damage
62
Developing countries, particularly the least developed countries and small island developing
State, have been particularly concerned about slow on-set climate change impacts, such as rising
sea levels, ocean acidification, salinization, and health impacts, that are not necessarily capable
of being redressed through specific adaptation projects. Developed country Parties have resisted
taking any concrete decision on this issue, known as loss and damage in the climate change
regime, because of challenges associated with attributing specific losses and damages directly
to climate change and because of the potential financial costs in addressing these impacts.
Jennifer Morgan, Reflections on COP 18 in Doha, at 4.
The Cancun Agreements began to address this issue by establishing a work program to
consider approaches to address loss and damage associated with climate change in
. . . particularly vulnerable developing countries. The work program calls for exploring the
possibility of a climate risk insurance facility, other options for risk-sharing including resiliencebuilding and economic diversification, and approaches for addressing rehabilitation measures
associated with slow onset events. See Decision 1/CP.16, at paras. 2529; Decision 2/CP.17,
paras. 92119.
In Doha, the Parties finally took more formal steps to address the issue, agreeing to establish
by the end of 2013 institutional arrangements, such as an international mechanism to address
loss and damage. Decision 3/CP.18, Approaches to Address Loss and Damage Associated with
Climate Change Impacts in Developing Countries That Are Particularly Vulnerable to the
Adverse Effects of Climate Change to Enhance Adaptive Capacity, para. 9 (2012). The many
details of such an institution remain to be negotiated, but developing countries are likely to ask
that it address rehabilitation, reconstruction, and compensation for damages from slow-onset
weather events.
__________

1. The Parties have created a number of new committees and institutions vital to addressing
climate change. How should these committees and institutions be composed? Developed
countries typically seek majority representation because they will ultimately be asked to pay for
actions taken by these institutions. Developing countries, because they will be recipients of the
funds, believe that they should have disproportionate representation. In some circumstances, the
least developed countries or the Pacific Small Island Developing States believe they are entitled
to representation. How would you compose the various committees and institutions? Are there
valid reasons to have different representation on the Adaptation Committee and Technology
Executive Committee?
2. The climate change regime now has a number of funds: the Green Climate Fund, the
Adaptation Fund, the Special Climate Change Fund (SCCF), and the Least Developed Countries
Fund (LDCF). The SCCF, established under the UNFCCC, funds climate change activities in
developing countries that are complementary to those funded by the GEF and other bilateral and
multilateral funds. The SCCF supports activities relating to adaptation, technology transfer,
energy, transport, industry, agriculture, forestry and waste management, among other activities.
Decision 7/CP.7, Funding under the Convention, para. 2 (2001). The LDCF, also established
63
under the UNFCCC, provides funding to least developed countries to develop national
adaptation programs of action, among other things. Id. at para. 6. The Adaptation Fund finances
concrete adaptation projects and programs in developing countries that are Party to the Kyoto
Protocol and which are particularly vulnerable to the adverse effects of climate change. Decision
10/CP.7, Funding under the Kyoto Protocol, para. 1 (2001). The GEF operates all three of these
funds.
With the climate change regime now sponsoring four different climate change funds, the
UNFCCC Parties in Cancun established a Standing Committee on Finance to improve
coherence and coordination in the delivery of climate change financing, rationalization of the
financial mechanism, mobilization of financial resources and measurement, reporting and
verification of support provided to developing country Parties[.] Decision 1/CP.16, para. 112;
see also Decision 2/CP.17, paras. 12025. What recommendations might you make for
improving the coherence and coordination in the delivery of finance? Why might developing
countries want robust MRV of developed countries financial support to developing countries?
3. How funds are distributed will depend in part on decisions made relating to adaptation and
technology transfer. How should the Green Climate Fund and the Standing Committee on
Finance coordinate with the Adaptation Committee and the Technology Mechanism?
4. In light of the goal of mobilizing US$100 billion per year by 2020, the Parties also agreed
to undertake a work program on long-term finance with the aim of analyzing options for
mobilizing resources from all sources. Decision 2/CP.17, paras. 12632. To what extent should
this analysis consider private financing? The United States, for example, believes strongly that
the $100 billion should come from public as well as private sources. Do you agree?
5. The Parties have left a number of finance issues unresolved. For example, they have not
identified how to allocate adaptation finance among developing countries. Priority access to faststart finance was given to a set of the most vulnerable countries which include small island
developing states, least developed countries, and countries in Africa. However, the Adaptation
Framework and long-term finance in the Green Climate Fund prioritize funding for particularly
vulnerable countries, which is undefined. In addition, the Cancun Agreements do not describe
the relationship of the Adaptation Framework and Adaptation Committee to new and old funds,
including the Adaptation Fund, which provides funds to least developed countries. These are
critical issues for many developing countries; while all are adversely affected by climate change,
only some of them are considered least developed countries.
Perhaps most significantly, the Parties have not committed funds for the period between 2013
and 2020. While the Copenhagen Accord and Cancun Agreements provided for fast-start finance
up to 2012 and the mobilization of US$100 billion for adaptation and mitigation by 2020, those
agreements and subsequent decisions have been silent with respect to financing from 2013 to
2020. This finance gap was addressed in Doha: Developed countries are encourage[d] to
increase efforts to provide finance between 2013 and 2015 at the same levels as provided during
the fast-start period. Decision 1/CP.18, Agreed Outcome Pursuant to the Bali Action Plan, para.
68 (2012). Some European countries, including Denmark, France, Germany, Sweden, and the
64
United Kingdom, have pledged funding for this period of around $10 billion. Many other
countries have failed to pledge any resources, citing difficult economic times.
__________
D. The Durban Platform
As noted in the previous section, the Durban Package constitutes a series of comprises under
both the UNFCCC and the Kyoto Protocol to move the climate agenda forward on adaptation,
finance, technology transfer, and capacity building. At the time, it was clear that Parties were not
willing to make new, near-term mitigation commitments. It was also well known that the pledges
inscribed in the Cancun Agreements fell well short of what is need to avoid catastrophic climate
change impacts and to meet the goal of minimizing temperature increases to no more than 2
degrees Celsius above pre-industrial levels. Just prior to the 2011 Durban negotiations, UNEP
reported that all developed and developing country pledges anchored in the Cancun Agreements
fall 6 GtCO2eq short of the emissions reductions needed to achieve the 2 degree goal. UNEP,
BRIDGING THE EMISSIONS GAP: A UNEP SYNTHESIS REPORT 9 (Nov. 2011). UNEP has since
revised that shortfall to at least 8 GtCO2eq. UNEP, THE EMISSIONS GAP REPORT 2012: A UNEP
SYNTHESIS REPORT 1 (Nov. 2012). Also at the time of the Durban negotiations, the International
Energy Agency reported that, if CO2 concentrations are to be kept below 450ppm, 80 percent of
the cumulative CO2 that may be emitted worldwide between 2009 and 2035 is already lockedin by existing infrastructure or infrastructure currently being built. 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. International Energy Agency, World Energy Outlook 2011
Factsheet 2 (2011).
Recognizing that the Kyoto Protocol track being negotiated by the AWG-KP had little else to
offer and that the AWG-LCA had largely completed its mission to implement the Bali Action
Plan (although many developing countries disputed that assertion), the Parties in Durban
launched a new negotiating round known as the Durban Platform under the auspices of a new
working group the Ad Hoc Working Group on the Durban Platform for Enhanced Action
(ADP). While the Parties charged the AWGDPA to reach agreement on a range of issues, they
made clear that mitigation is its priority.
UNFCCC, Decision 1/CP.17

Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action
(2011)
4. Decides that the Ad Hoc Working Group on the Durban Platform for Enhanced Action
shall complete its work as early as possible but no later than 2015 in order to adopt this protocol,
another legal instrument or an agreed outcome with legal force at the twenty-first session of the
Conference of the Parties and for it to come into effect and be implemented from 2020;
5. Also decides that the Ad Hoc Working Group on the Durban Platform for Enhanced
Action shall plan its work in the first half of 2012, including, inter alia, on mitigation, adaptation,
finance, technology development and transfer, transparency of action and support, and capacity65
building, drawing upon submissions from Parties and relevant technical, social and economic
information and expertise;
6. Further decides that the process shall raise the level of ambition and shall be informed,
inter alia, by the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, the
outcomes of the 20132015 review and the work of the subsidiary bodies;
7. Decides to launch a workplan on enhancing mitigation ambition to identify and to explore
options for a range of actions that can close the ambition gap with a view to ensuring the highest
possible mitigation efforts by all Parties * * *
__________
As the Parties launch this new round of negotiations, they face formidable obstacles to
raising the level of mitigation ambition:
First, parties will not even be halfway through implementation of their Cancun
pledges before they are asked to adopt new commitments. Second, the Review
Mechanism, which will review the adequacy of the long-term global goal for
emissions reductions, and the fifth report of the Intergovernmental Panel on
Climate Change may not be completed in time to inform governments. Third, the
[ADP] will inherit the seemingly intractable issue of whether any future climate
deal should take the form of a protocol, legal instrument or agreed outcome with
legal force. As such, it will take a substantial breakthrough to avoid business-asusual political and emissions trends.
Chris Wold, The Durban Package and the Goals of Pacific Small Island Developing States, 16
ASIL INSIGHTS, Issue 1, Jan. 6, 2012.
__________

1. In Doha, the Parties concluded the work under the Bali Action Plan and the AWGLCA.
Decision 1/CP.18, Agreed Outcome Pursuant to the Bali Action Plan, preamble (2012). They
also concluded the work of the AWGKP. Decision 1/CMP.8, Amendment to the Kyoto Protocol
pursuant to its Article 3, Paragraph 9 (the Doha Amendment), para. 30 (2012). That leaves the
ADP as the only negotiating forum, although of course the work of the Parties under the
UNFCCC and the Kyoto Protocol will continue. From the perspective of the Pacific Small Island
Developing States, should they be optimistic about achieving more of their goals through the
ADP than they were able to achieve through the AWGLCA and AWGKP?
2. Consider the institutional framework that has been established since the 2010 meeting in
Cancun. For countries like China and the United States, what incentive is there to negotiate for
more?
__________
1. Legal Form
66
The Bali Action Plan called on the UNFCCC Parties to launch a comprehensive process to
reach an agreed outcome. In Copenhagen, before the Copenhagen Accord took shape, lawyers
and advocates of all stripes sought clarity on the meaning of agreed outcome and what type of
action would be necessary to achieve a legally binding agreed outcome. The issue arose as
many environmental groups and developing country Parties looked for ways to ensure that any
U.S. commitments would be legally binding. In addition, developing countries wanted to
ensure that any agreed outcome maintained the divide between binding developed country
mitigation commitments and nonbinding developing country actions. Meanwhile, some
Parties, notably India, added to the confusion by insisting that a new treaty or protocol was not
necessary, because decisions of the Parties are binding.
Among international lawyers, the question of whether decisions are binding as a matter of
international law has a simple answer: they are not. Indeed, the foundation of international
lawmaking places treaties, custom, and general principles of law as lex lata, hard law that
is, legally binding law. On the other hand, resolutions and decisions of the United Nations
General Assembly, multilateral conferences, and Conferences of the Parties to multilateral
agreements are lex ferenda, soft law that is, not legally binding law. At climate change
meetings, some have complained that recognizing CoP decisions as nonbinding undermines
decades of work at meetings of the Parties to build rules and institutions through decisions.
Others, however, see the hard law-soft law distinction as a critical part of the consensusbuilding that is ultimately needed to negotiate an environmental treaty. DAVID HUNTER, JAMES
SALZMAN & DURWOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 34445
(4th ed. 2011). Nonetheless, some lawyers have pointed to the Montreal Protocol on Substances
that Deplete the Ozone Layer and the Convention on International Trade in Endangered Species
of Wild Fauna and Flora (CITES) as examples of where decisions of the Parties can be binding.
Article 2(9) of the Montreal Protocol allows the Parties to adjust the phaseout schedules for
ozone depleting substances already included in an Annex to the Protocol. Article XV of CITES
allows the Parties to amend the Appendices of species to which trade restrictions apply. Unlike
general decisions of the Parties, these provisions expressly provide that these specific
decisions are binding. Decisions not falling under special provisions establishing their binding
legal character are thought to be highly authoritative and persuasive as to the Parties intent, but
nonetheless not legally binding.
Aside from any agreements legal effect on the United States, the United States is also asking
what the effect will be on key developing countries, such as India and China. While the United
States has long made its position clear that major emitting developing States must adopt
commitments to limit or reduce their GHG emissions, the United States has since clarified that
these States must have legally symmetrical obligations. In other words, if the United States
adopts legally binding commitments, then so too must India and China. The U.S. position runs
head first into the position of the G77 and China that all Annex I Parties should have legally
binding mitigation obligations, while developing countries do not.
When the Parties refused to adopt the Copenhagen Accord, the issue of legal form for the
post-Kyoto Protocol regime was pushed to Cancun. The Cancun Agreements deftly sidestepped
this tricky issue by directing the AWG-LCA to continue discussing legal options with the aim
67
of completing an agreed outcome based on [the Bali Action Plan]. Decision 1/CP.16, para. 145.
In Durban, the Parties settled the issue with respect to the Bali Action Plan but renewed the
debate for any subsequent agreement. With respect to the Bali Action Plan, the Parties directed
the AWG-LCA to continue its work to reach an agreed outcome . . . through decisions. They
directed the new AWGADP, however, to adopt a protocol, another legal instrument or an
agreed outcome with legal force under the Convention applicable to all Parties by 2015 and for
this new agreement to come into effect by 2020. Decision 1/CP.17, Establishment of an Ad Hoc
Working Group on the Durban Platform for Enhanced Action, paras. 2, 4 (2011).
__________

1. The Parties have spent considerable time debating the legal form of any post-Kyoto
Protocol regime. Some Parties argue that form follows function. For these Parties, once the
substantive obligations are known, then the Parties can better decide whether a decision or a
protocol is the proper legal device for implementing the obligations. Other Parties counter that
they need to know what the legal form is so that they can better negotiate their substantive
obligations. For example, Parties may be able to agree to certain substantive provisions or more
ambitious targets if those obligations are set out in a non-legally binding document. Do you think
one approach is better than the other? Do you think the positions of the Parties are motivated by
a real belief in the substance of their argument or by a larger political agenda?
2. The focus on whether the climate negotiations will result in a binding instrument has been
a major issue in recent years, engendering significant controversy and adding to the difficulty in
gaining consensus. In the end, how important do you think it is that the agreement is legally
binding? Is it enough that Parties make clear commitments and agree to processes for
measurement, reporting, and verification?
3. A number of scholars have pushed for a new conception of law based on resolutions of
Parties, the U.N. General Assembly, and other international bodies. They have characterized
resolutions and decisions that have normative character as general international law or
universal law that might be binding on the international community. See, e.g., Gunther Handl,
The Legal Mandate of Multilateral Development Banks as Agents for Change toward
Sustainable Development, 92 AM. J. INTL. L. 642, 62062 (1998); Jonathan Charney, Universal
International Law, 87 AM. J. INTL L. 529 (1993). They argue that we should look to the content
of specific documents, the number of States that have signed or otherwise agreed to the
document, and other characteristics of an adopted document to determine whether it is binding or
nonbinding. Do you agree? Instead, should we maintain the current distinction between treaties,
custom, and general principles as binding law on the one hand and decisions and resolutions as
nonbinding law on the other? If we embrace the views of these scholars, how might that affect
the outcome of the climate change negotiations?
4. In significant part, the issue of the legally binding character of the post-Kyoto Protocol
regime arose because the United States had failed to ratify the Kyoto Protocol and a number of
other multilateral environmental agreements. Moreover, with U.S. climate change legislation
stalled in the Senate, environmental groups sought some mechanism to bind the United States.
68
The United States did not seem to have a viable option of negotiating and participating in a new
treaty, because treaties in the United States require ratification by a two-thirds vote of the Senate
and implementing legislation requires approval by both the Senate and the House. Neither
seemed possible. As a consequence, the conference halls were full of chatter about the legally
binding character of CoP decisions and the possibility of an executive agreement that would
not require U.S. Senate consent to ratification.
As noted above, decisions are considered nonbinding under international law. If decisions of
the Parties could not bind the United States, could an executive agreement? Through executive
agreements, the president enters into accords with foreign nations without seeking the advice and
consent of the Senate. See Nigel Purvis, Paving the Way for U.S. Climate Leadership: The Case
for Executive Agreements and Climate Protection Authority (Resources for the Future Apr.
2008). The President has used his foreign affairs authority on many occasions to negotiate
executive agreements some 15,000. These executive agreements can be CongressionalExecutive agreements that Congress authorizes ex ante or ex post. Free trade agreements are a
common example of Congress authorizing the agreement ex ante; Congress gives the executive
the authority to negotiate a free trade agreement and the executive submits legislation to
Congress to implement the agreement once the negotiations are completed. Of course, neither ex
ante or ex post Congressional-Executive agreements evade Congress entirely. A sole executive
agreement probably would not either. The Senate Foreign Relations Committee report on
ratification of the UNFCCC stated that a decision by the Conference of the Parties to adopt
targets and timetables would have to be submitted to the Senate for its advice and consent before
the United States could deposit its instruments of ratification for such an agreement.
S.Exec.Rept. 102-55, 102d Cong., 2d Sess. (1992), at 14. Moreover, while the President might
successfully negotiate such an executive agreement on climate change, Congress still controls
the purse. It seems unlikely that Congress would appropriate funds for implementation of a
climate change executive agreement that purposefully evades the Senate.
5. The binding nature of CoP decisions became entwined with the issue of whether decisions
could nonetheless bind the United States as a matter of domestic law. In a case assessing whether
a specific decision of the Parties to the Montreal Protocol could bind the United States, the court
said no. NRDC v. EPA, 464 F. 3d 1 (D.C. Cir. 2006). In this case, petitioners alleged that the
Environmental Protection Agency (EPA) issued rules for the production and consumption of
methyl bromide, an ozone depleting substance, in violation of rules for its use established by a
decision of the Montreal Protocol Parties. In this deeply flawed opinion, the court made several
mistakes. For example, the court assumed that decisions reflect the Parties common
understanding that the decisions are international political commitments rather than judicially
enforceable domestic law. 464 F. 3d at 10. However, it is highly unlikely that the Parties
contemplate whether decisions might be judicially enforceable in domestic courts. The court
further assumed that the failure of the Parties to trigger the Montreal Protocols noncompliance
procedure against the United States suggests that the Parties intended the side agreements to be
enforceable as a political matter. Id. However, the Parties could have equally thought that the
United States was in compliance or that the importance of other matters outweighed triggering
the noncompliance mechanism against the United States. More fundamentally to the issue at
hand, the court failed to analyze the Clean Air Act. Under the Clean Air Act, the U.S. Court of
Appeals for the D.C. Circuit may reverse EPA actions that are arbitrary, capricious, an abuse of
69
discretion, or otherwise not in accordance with law. Clean Air Act, 42 U.S.C. 7607(b)(1),
(d)(9)(A). As Professor John Knox has argued, the court should have addressed whether the
Montreal Protocol decision was law within the meaning of the Clean Air Act, and if it was,
whether EPA acted in accordance with it. John H. Knox, Natural Resources Defense Council v.
Environmental Protection Agency, 464 F. 3d 1, United States Court of Appeals for the District of
Columbia Circuit, August 29, 2006, 101 AM. J. INTL. L. 471, 474 (2007).
__________
2. Towards New Mitigation Commitments: CBDR and Equity

In addition to the question of legal form, the Parties also must agree on new mitigation
commitments no later than 2015. In doing so, they must bridge the chasm between the views
of the United States and some other developed countries that the major emitting countries take
on binding mitigation responsibilities and the views of developing countries that they should not
have binding obligations. The United States insists on legal symmetry between any obligations
it undertakes and those of major emitting developing countries like China and India. In fact, the
United States, the European Union, Switzerland, and other developed country Parties have
opened up a new legal line of attack to make the case for significant action by major emitting
developing countries. These Parties have called for rethinking the meaning of common but
differentiated responsibilities (CBDR), the UNFCCCs cornerstone principle. In the climate
change regime, CBDR means that developed countries bear a disproportionate responsibility to
mitigate climate change given their disproportionate historic emissions. See Chapter 4, Section
A.4. Because China is now the worlds largest GHG emitter and developing country CO2
emissions exceed those of developed countries, these Parties argue that CBDR must evolve to
take into account these contemporary circumstances. As Switzerland declared during the
negotiations, CBDR is not static, it is dynamic.
The G77 and China continue to respond that developed countries have by far the largest
share of historic emissions and must take the lead to mitigate climate change. They also point
to a 2011 report that shows that developing countries have pledged under the Cancun
Agreements to mitigate more GHG emissions than developed countries. Sivan Kartha & Peter
Erickson, Comparison of Annex 1 and Non-Annex 1 Pledges under the Cancun Agreements 1
(Stockholm Environment Institute 2011).
This debate in Durban has reinvigorated the debate over what CBDR requires, what is
equitable, and what constitutes an equitable assignment of responsibilities between Parties.
Recall that the UNFCCC Preamble notes that the largest share of historical and current global
emissions of greenhouse gases has originated in developed countries. At the same time, the
Preamble acknowledges the global nature of climate change calls for the widest possible
cooperation and participation by all countries in accordance with their common but
differentiated responsibilities and respective capabilities and their social and economic
conditions. Moreover, UNFCCC Article 3.1 provides that:
The Parties should protect the climate system for the benefit of present and
future generations of humankind, on the basis of equity and in accordance with
their common but differentiated responsibilities and respective capabilities.
70
Accordingly, the developed country Parties should take the lead in combating
climate change and the adverse effects thereof.
As a consequence of these and other provisions in the UNFCCC, Parties have come to
differing views of CBDR and equity and whether or to what extent the allocation of mitigation
responsibilities should reflect one or more of the following ideas: CBDR, equity, historic
responsibility for climate change, and the need for development. In the following sections, we
summarize some of the prevailing views on these issues, ways to balance and operationalize
CBDR and equity, and some facts that may assist you in coming to your own conclusions about
how to allocation mitigation and other climate change responsibilities.
a. CBDR, Equity, and the Views of Some Parties

TODD STERN, U.S. SPECIAL ENVOY FOR CLIMATE
CHANGE, KEYNOTE ADDRESS, BROOKINGS
CONFERENCE: ENERGY AND CLIMATE CHANGE 2010:
BACK TO THE FUTURE
May 18, 2010
[T]he idea that common but differentiated responsibilities and respective capabilities
requires a different regime for developing and developed countries on every particular, whether
mitigation, transparency or any other issue is completely unfounded.
On its face, the phrase expresses the notion of a continuum of responsibilities and capabilities
among countries. It does not legislate an unbridgeable divide between developed and developing
countries. It does not prevent differentiation among developing countries or among developed
countries. It does not say that China should be treated like Chad even though its capacities are
closer to members of the OECD. It does not say that the lineup of countries in 1992 can never
evolve. Most important, it does not trump the core objective of the Framework Convention itself:
that we must act to avoid dangerous climate change.
Beyond the fact that the text does not actually support the old paradigm, that paradigm is also
unworkable as a matter of both substance and politics. Most fundamentally, you cannot address
the climate challenge by focusing only on developed countries; they account for around 45% of
global emissions now and will account for some 35% by 2030. Instead, you need to start with the
85% of emissions represented by the major economies and build out from there.
__________
CHRISTOPH SCHWARTE & EMILY MASSAWA

EQUITY ISSUES IN THE CLIMATE CHANGE NEGOTIATIONS
78 (Aug. 2009)
The UNFCCC Preamble notes that the largest share of historical and current global
emissions of GHG has originated in developed countries. Their previous conduct (resulting in
global warming) effectively prevents developing countries from increasing their emissions and
71
growing in a similar way. Several developing countries therefore increasingly refer to per capita
emissions in different parts of the world as an indicator for equity in a post-Kyoto climate
regime.
Amongst others, China, India and Bolivia argue that atmospheric resources are the common
wealth of humankind. But due to the non-equitable use of the existing atmospheric space by a
wealthy minority (of Annex I countries) the emission space of developing countries is now
limited. By basing future emission allowances on the past levels of emissions this emission debt
(also referred to as climate debt or ecological debt) would deepen even further. Developed
countries are therefore held responsible for compensating developing countries for their
contribution to the adverse effects of climate change.
A practical example: If an Annex I country agreed to reduce its emissions by 30%, per
capita emissions would go down from 20 to 14 ton per capita. Meanwhile, developing countries
limited to a 20% deviation from baseline and a 2 ton per capita emission would have to restrict
emission to 2.6 ton, or even less (if population growth is taken into account). In this system, the
gross inequality in per capita emission remains.
__________
b. Operationalizing CBDR and Equity

Even if we can agree that CBDR evolves or does not evolve and whether equity should or
should not play a role in determining a Partys responsibilities, we still are left with the difficult
task of determining just how to apportion those responsibilities in a practical and meaningful
way. The following two excerpts delve into some of the problems associated with this task.
WOLFGANG SACHS, CLIMATE CHANGE AND HUMAN RIGHTS

in INTERACTIONS BETWEEN GLOBAL CHANGE AND HUMAN HEALTH 349 (Pont. Acad. of Sci,
2006)*
The atmosphere belongs to nobody in particular and to everybody equally; in other words,
the atmosphere is a global common good. In the future, who should be allowed to use it, and by
how much? What principles should determine the fair distribution of the cake that is available?
Among observers of the negotiations, this issue has been hotly debated for some time. For
instance, some put forth the grandfathering principle, according to which each nation has to
accept equal reduction commitments, disregarding the present unequal distribution of emissions.
However, as such a principle would maintain the global welfare gap; it can hardly be considered
fair. Brighter prospects are offered by the capabilities principle that demands commitments
according to the capability of countries to reduce emissions. Economically strong countries are
expected to carry the bulk of the reduction load, regardless of how efficiently they use energy.
This proposal may be fair, but it is ecologically counterproductive, as wasteful countries would
enjoy an advantage. A third principle calls for a distribution of commitments according to the
historical responsibility of countries for loading the atmosphere with greenhouse gases. Each
*
Copyright 2006 by Pontifical Academy of Sciences. All rights reserved. Reprinted with permission.
72
countrys obligation would be measured by its relative contribution to global warming. Indeed,
in 1997 Brazil introduced a proposal along these lines to the climate negotiations; the issue of
equity has been squarely on the agenda of environmental diplomacy ever since. Countries are
expected to assume obligations according to their share of cumulative emissions, given that the
ominous concentration of greenhouse gases in the atmosphere has been built up over 150 years.
Such a scheme would place the biggest burden by far on industrial countries. However, it is
doubtful to what extent responsibility can be assumed for actions that have been adopted in
ignorance of their consequences. After all, the possibility of a greenhouse effect was known to
just a handful of specialists before the 1980s.
The situation is different when it comes to the equal entitlement approach. This calls for a
framework that respects the principle of an equal per capita right to the Earths atmosphere. Most
other allocation schemes would repeat a colonial style approach, granting disproportionate shares
to the North. If the use of a global common good has to be restrained through collective rules, it
would violate the principle of equity to design these rules to the advantage of some and the
disadvantage of many. The equal right of all world citizens to the shared atmosphere is therefore
the cornerstone of any viable climate regime. Therefore, for the second commitment period of
the Kyoto Protocol, a process should be initiated whereby each country is allocated emission
allowances based on equal rights per capita. This is hard on the North, but not unfair, as in
exchange for accepting the rule of egalitarianism in the present, industrial countries would not be
held liable for emissions accumulated in the past.
Assuming an equal right to the Earths atmosphere, broadly speaking it is possible to
envisage different development paths for North and South. All countries are expected in the long
run, to converge upon a similar level of fossil energy-use per capita. The North will contract,
while the South will expand towards a convergence with the North. Over-users will have to come
down from their present level, while under-users are permitted to raise their present level, albeit
at a gradient that is much less steep than the one industrial countries went through historically,
levelling off at the point of convergence. However, the convergence of North and South on equal
emission levels cannot be achieved at the expense of contraction, i.e., the transition to globally
sustainable levels of emissions. Once again, sustainability gives rise to equity. Indeed, the vision
of contraction and convergence combines ecology and equity most elegantly; it starts with the
insight that the global environmental space is finite, and attempts to fairly share its permissible
use among all world citizens, taking into account the future generations as well.
__________
The last excerpt by Paul Baer et al. begins with the premise that carbon-based growth is no
longer a viable option in either the North or the South as emissions decline to 80 percent below
1990 levels by 2050 so that CO2 concentrations can peak below 420 ppm and then begin to fall
towards 350 ppm. However, because of the high level of emissions in developed countries, only
a small portion is left for developing countries and their people people who are struggling in
poverty and desperately seeking a significant improvement in their living standards. The authors
ask how these countries and their people will be able to meet their needs on such a small carbon
budget.
73
As a consequence, they have constructed a Greenhouse Development Rights framework

(GDRs) that focuses on the right of the people of developing countries to develop in a
sustainable manner. Below a certain threshold, which they set to reflect a level of welfare that is
beyond basic needs but well short of todays levels of affluent consumption. At $16 per day
per person (PPP adjusted), this level is much high that the $12 per day for those in extreme
poverty. The figure is set at the level at which the classic plagues of poverty malnutrition,
high infant mortality, low educational attainment, high relative food expenditures begin to
disappear, or at least become exceptions to the rule. They then adjusted upward by 25 percent to
$20 per person per day ($7,500 per person per year) to reflect[] the level at which the southern
middle class begins to emerge. People below this threshold have development as their top
priority and they are not responsible for mitigating climate change. For others, they have
responsibilities to mitigate climate change as their incomes climb. In other words, responsibility
flows from capacity as well as contribution to climate change. Based on country-specific income,
income distribution, and emissions data, the authors create a Responsibility Capacity Index
(RCI). The larger a countrys emissions and more capacity a country has meaning the more
per capita income above the $20 per day per person threshold that is available to satisfy nonbasic
needs the greater will be the responsibility to mitigate climate change.
PAUL BAER ET AL., THE RIGHT TO DEVELOPMENT IN A CLIMATE

CONSTRAINED WORLD: THE GREENHOUSE DEVELOPMENT
RIGHTS FRAMEWORK
15 (2d ed. 2008)
Looking at just the 2010 numbers, for example, they show that the United States, with its
exceptionally large share of the global population of people with incomes above the $20 per day
development threshold (capacity), as well as the worlds largest share of cumulative emissions
since 1990 (responsibility), is the nation with the largest share (33.1 percent) of the global RCI.
And that the EU follows with a 25.7 percent share. And that China, despite being relatively poor,
is large enough to have a rather significant 5.5 percent share, which puts it even with the much
smaller but much richer country of Germany. And that India, also large but much poorer, falls far
behind China with a mere 0.5 percent share of the global obligation to act.
. . . [T]he global balance of obligation changes over time, as differing rates of national
growth change the global income structure. The results are most obvious, and startling, in the
projected change in Chinas share of the total RCI, which reflecting its extremely rapid
growth and the increasing number of Chinese people who are projected to enjoy incomes above
the development threshold nearly triples (from 5.5% to 15.3%) in the two decades from 2010
to 2030. [The RCI index of the 27 member States of the European Union declines from 25.7
percent in 2010 to 19.6 percent in 2030. The RCI for all Annex I Parties declines from 76.9
percent in 2010 to 60.9 percent in 2030. Meanwhile, the RCI for non-Annex I Parties increases
from 23.1 percent in 2010 to 39.1 percent in 2030.]
***
How might such obligations be operationalized? Consider two complementary examples.
First, imagine a single grand international fund to support both mitigation and adaptation akin
74
to, say, the Multinational Climate Change Fund proposed by Mexico. The RCI could serve as the
basis for determining each nations obligatory financial contribution to that fund. So, for
example, if the annual climate transition funding requirement amounted to a trillion dollars
(about one and a half percent of Gross World Product), then in 2010, the US, with its 33.1
percent of the global RCI, would be obligated to pay about $331 billion. Similarly, the EUs
share would be $257 billion (25.7% of the global RCI), Chinas share would be $55 billion
(5.5%), Indias share would be $5 billion (0.5%), and so on. The RCI, in effect, serves as the
basis of a progressive global climate tax not a carbon tax, per se, but a responsibility and
capacity tax.
There are, of course, ways of thinking about global burden sharing that do not focus on
national financial obligations. The most important is emissions reductions driven by way of
Kyoto-style national targets. These we approach by comparing a global reference trajectory to
the rapidly declining 2C emergency pathway, a comparison that allows us to straightforwardly
calculate the total amount of mitigation (in, say, gigatons of carbon) that is needed globally in
any given year. Applying the GDRs framework, national reductions obligations are defined as
shares of the global mitigation requirement, which is allocated among countries in proportion to
their RCI. The US, for example (see the following figure) is projected to have a 2020 reduction
obligation equal to 29.1% of the roughly 4 GtC of mitigation that will then be needed. In general,
each country is given an emission target equal to its reference trajectory minus its proportional
share of the global mitigation requirement.
__________

1. These questions of CBDR and equity arise in two different ways in the ADP.
Work Stream 1 relates to the development of new commitments for the post-2020 regime.
Work Stream 2 relates to enhancing the level of ambition during the pre-2020 period.
Recall that UNEP has identified a significant gap between the pledges inscribed in the
Cancun Agreements and the emissions reductions needed for meeting the 2 degree goal.
This is known as the emissions gap or, in paragraph 7 of the Durban Platform, the
ambition gap. According to UNEP, [t]he estimated an emissions gap in 2020 for a
likely chance of being on track to stay below the 2C target is 8 to 13 GtCO2e. UNEP,
THE EMISSIONS GAP REPORT 2012: A UNEP SYNTHESIS REPORT 1 (Nov. 2012).
Are there reasons for treating the issues of CBDR and equity differently in the two work
streams?
2. CBDR, Equity, and Some Climate Change Statistics. The number of ways that GHG
emissions can be characterized makes it difficult to identify the right mitigation formula for
deciding new mitigation commitments. Consider some of the statistics below.
Between 1850 and 2009, countries emitted about 1,280 Gigatons of CO2. Of the
cumulative global emissions Annex I countries accounted for 72 percent of the total with
75
developing countries accounting for 28 percent of the total. To achieve a 67 percent

probability of limiting temperature rise to within 2 degrees, CO2 emissions in 2010-2050
must be kept to below 750 Gt; a 75 percent probability requires a 600 Gt budget.
GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE (WBGU), SOLVING THE CLIMATE
DILEMMA: THE BUDGET APPROACH 15, 2526 (2009); World Resources Institute, Climate
Analysis Indicators Tool (CAIT), at http://cait.wri.org.
In 2004, Annex I Parties held 20 percent of world population, had average emissions of
16.1 tonnes CO2eq per capita, and produced 57 percent of the worlds Gross Domestic
Product (based on purchasing power parity). Average per capita emissions in non-Annex
I Parties were about a fourth of the Annex I levels.
Table 61: Historic CO2 Emissions from Energy: 18502008
Rank
1
(2)
2
3
4
5
6
7
8
Country
United States
EU -27
China
Russia
Germany
United Kingdom
Emissions MtCO2e
344,769.2
313,779.7
113,144.4
96,127.0
82,022.2
69,239.1
% of World Total
28.52%
25.95%
9.36%
7.95%
6.78%
5.73%
46,865.8
33,053.5
30,428.5
9,017.2
1,830.3
3.88%
2.73%
2.52%
0.75%
0.15%
Japan
France
India
36 developing countries
51 developing countries
Source: World Resources

http://cait.wri.org.
Institute,
Climate
Analysis
Indicators
Tool
(CAIT),
Table 62: 2005 GHG Emissions (CO2, CH4, N20, PFC, HFC, SF6)
Excluding LULUCF
Rank
1
2
(3)
3
4
5
6
7
8
9
34
94
Country
China
United States
EU-27
Russia
India
Japan
Brazil
Germany
Canada
United Kingdom
Mexico
Indonesia
Emissions MtCO2eq
7,242.1
6,900.9
5,046.7
1,939.6
1,865.0
1,349.2
1,010.5
977.5
741.8
642.2
631.0
576.5
76
% of World Total
19.16
18.26
13.35
5.13
4.93
3.57
2.67
2.59
1.96
1.70
1.67
1.53
at
Source: World Resources Institute, Climate Analysis Indicators Tool (CAIT).

Table 63: 2005 Per Capita GHG Emissions (includes LULUCF)
Rank
Country
Tonnes CO2eq Per Person
Rank
Total emissions
1
Qatar
74.7
68
2
United Arab Emirates
39.2
41
3
Kuwait
38.9
61
4
Brunei
33.7
126
5
Trinidad & Tobago
33.1
89
6
Bahrain
29.2
108
6
Australia
27.5
16
8
Luxembourg
26.7
125
9
Canada
25.0
10
10
United States
22.9
2
Table 64: 2005 Emissions Intensity for CO2, CH4, N20, PFC, HFC, SF6
(excluding LULUCF)
Rank
Country
Emissions Intensity (tCO2eq/mill. $)
1
Central African Republic
22,691.3
2
Congo, Dem. Republic
5,939.2
3
Solomon Islands
4,315.5
4
Mongolia
4,153.3
5
Turkmenistan
4,043.1
6
Zambia
3,872.7
7
Uzbekistan
3,427.3
8
Korea (North)
2,959.3
9
Guyana
2,824.6
10
Nauru
2,432.3
34
China
1,350.1
94
India
740.9
124 United States
548.6
3. The United States and others have made the claim that China, India, Brazil, and other
major emitting developing States must have binding commitments because the principle of
common but differentiated responsibilities has evolved over time. This principle has guided
the climate change regime since 1992 and has always meant that developed countries must take
the lead in reducing emissions of greenhouse gases through binding commitments to reduce or
limit greenhouse gas emissions. Are the United States and other developed countries correct that
CBDR now requires major emitting developing countries to join developed countries in agreeing
to binding commitments to reduce or limit greenhouse gas emissions?
77
4. Wolfgang Sachs argues that mitigation responsibilities should be based on an equal

entitlement approach. Do you agree? Under this approach, countries would converge on similar
level of fossil energy-use per capita. Clearly, countries like the United States, Canada, and
Australia and most of the 27 EU member States would see their per capita emissions decline
dramatically. Sachs proposes an interesting carrot to encourage developed countries to adopt
such an approach: no liability for past emissions. Do you agree with this proposal? Is it
reasonable to allocate the same per capita emissions to the United States and Mozambique, with
their wildly disproportionate emissions but also wildly disproportionate contribution to the
global economy? How would Paul Baer et al. respond to that question? If you disagree with
Sachss approach, how would you allocate emissions? On what basis were the emission caps
allocated under the Kyoto Protocol?
5. While the proposals of Sachs and Paul Baer et al. focus on equal entitlement, they differ
significantly. How?
6. Baer et al. emphasize a fundamental concern of developing countries: that fundamental
development issues such as clean water, improved health care and education, and food security
will be treated as secondary to climate change mitigation. This fear is not unwarranted. Despite
repeated calls for new and additional funding for climate change efforts, several reports have
shown that developed countries frequently shift existing climate change funding or development
aid to climate change purposes. See, e.g., Kirsten Stasio et al., Summary of Developed Country
Fast-Start Climate Finance Pledges (World Resources Institute, Nov. 2011). Does the
approach of Baer et al. resolve these concerns? Baer et al. believe that their approach defines
and quantifies national obligations in a way that explicitly safeguards a meaningful right to
development. Do you agree? What else can the Parties do to ensure that climate change
concerns do not trump development concerns?
7. Regardless of the emissions scheme that is chosen and the approach it takes to equity, each
countrys annual emissions, per capita emissions, and global share of historic emissions are
continuously changing. How can the proposals of Sachs and Baer et al. and other equitable
emissions schemes reflect this change while remaining effective and fair?
78

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CHRIS WOLD, DAVID HUNTER & MELISSA POWERS, CLIMATE CHANGE AND THE LAW (Lexis-Nexis, 2d ed.

Aggregate annual GHG emissions of developing countries now exceed developed

Historical emissions by industrialized countries, and thus their contribution to current

II. THE ROAD TO BALI

A. The Views of the Parties

2. The United States and the Major Emitters Process

PRESIDENT BUSH DISCUSSES UNITED STATES INTERNATIONAL

G8, GROWTH AND RESPONSIBILITY IN THE WORLD ECONOMY

STATEMENT BY H. E. MUKHDOOM SYED FAISAL SALEH HAYAT ON

17. Equally important is to work towards strengthening North-South, South-South and

QUESTIONS AND DISCUSSION

either in the second or subsequent commitment periods developing countries would be

B. The Bali Action Plan

UNFCCC, DECISION 1/CP.13

Resolving to urgently enhance implementation of the Convention in order to achieve its

(iv) Cooperative sectoral approaches and sector-specific actions, in order to

QUESTIONS AND DISCUSSION

III. BUILDING A NEW CLIMATE

A. The Road to Copenhagen

1. The Commitment Goal

2. Which Countries Will be Subject to Commitments?

QUESTIONS AND DISCUSSION

3. Options for Mitigation Commitments

Measuring Climate Performance

Compliance and Emissions Trading

Box 3 Applying a GHG Intensity Indicator: A Thought Exercise

QUESTIONS AND DISCUSSION

b. Policies and Measures

DANIEL BODANSKY, CLIMATE COMMITMENTS:

4143 (Pew Center on Global Climate Change 2003)*

Eliminating the use of sulfur hexafluoride (SF6) or perfluorocarbons (PFCs) in the

Replacing gasoline in the transport sector with hydrogen produced by non-carbon

Eliminating carbon emissions from the energy sector by 2060.

SCOTT BARRETT, U.S. LEADERSHIP FOR A GLOBAL

QUESTIONS AND DISCUSSION

would be legally binding; if a country exceeded the target, it would suffer

DANIEL BODANSKY, A SURVEY OF APPROACHES

Form and Forum of Negotiations

Copyright Daniel Bodansky. All rights reserved. Reprinted with permission.

B. The Copenhagen Accord

QUESTIONS AND DISCUSSION

Quantified economy-wide emissions targets for 2020

Appendix II - Nationally appropriate mitigation actions of developing country Parties

Nationally appropriate mitigation actions

C. The Cancun Agreements and the Durban Package

UNFCCC, DECISION 1/CP.16

I. A shared vision for long-term cooperative action

QUESTIONS AND DISCUSSION

a. MRV for Annex I Parties

technological, and capacity-building support to developing country Parties, and to assess

b. MRV for Non-Annex I Parties

Internationally supported mitigation actions will be measured, reported, and verified

Domestically supported mitigation actions, in contrast, will be measured, reported, and

QUESTIONS AND DISCUSSION

discussion of the compensation mechanism known as REDD Reducing Emissions from

3. Mitigation in the Kyoto Protocol Track

QUESTIONS AND DISCUSSION

7. Loss and Damage

QUESTIONS AND DISCUSSION

UNFCCC, Decision 1/CP.17

QUESTIONS AND DISCUSSION

QUESTIONS AND DISCUSSION

2. Towards New Mitigation Commitments: CBDR and Equity