An Introduction to International Environmental Law: Bali and Copenhagen on the Map

From the archives: those of you who are interested in international environmental law, will find this post from 2011 intriguing.

This post contains the second installment of the introductory write up on International Environmental Law and framework by Preeta Dhar, a fourth-year student of National Law School, Bangalore. The first part is available here. Everyone else please bear with me as I alert the CLAT aspirants, this is super important legal GK for you. For the rest of us, this is a chance for comprehending a complex web of legal and diplomatic entanglements over climate change.

BALI ROADMAP

The 2007 United Nations Climate Change Conference took place at the Bali. The conference encompassed meetings of several bodies, including the 13th Conference of the Parties to the United Nations Framework Convention on Climate Change (COP 13), the 3rd Meeting of the Parties to the Kyoto Protocol (MOP 3), together with other subsidiary bodies and a meeting of ministers. In light of the fact that the commitment period of the Kyoto Protocol is till 2012, the international community, at this point, started to consider a successor to the Kyoto Protocol. The idea was to work towards adopting ‘concrete steps for the negotiations’ with a view to reaching an agreement by 2009.

COP 13 adopted the Bali Road Map, which included the Bali Action Plan and the setting up of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP). The Bali Road Map marks an important milestone by launching the Bali Action Plan envisioning a comprehensive process to enable the implementation of the Convention through long-term cooperative action, including establishment of an adaptation fund (to meet the costs of adapting to environmental degradation owing to climate change), technology transfer and reduction of emissions through deforestation.

The two-year negotiating process envisioned under the Bali Road Map culminated in the Copenhagen conference, in which, it was hoped that a solution at an international level could be agreed upon by both developed and developing countries regarding the legal framework of burden sharing after the completion of the first commitment period under the Kyoto Protocol, which extends till 2012.

 

COPENHAGEN

The United Nations Climate Change Conference in Copenhagen constituted the 15th Conference of Parties (COP 15, the annual meeting under the UNFCCC) and the 5th Meeting of Parties (MOP 5, the annual meeting under the Kyoto Protocol), as well as the tenth session of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP 10) and the eighth session of the Ad Hoc Working Group on Long-term Cooperative Action under the UNFCCC (AWG-LCA 8). Ironically, the outcome of the- the Copenhagen conference, better known as the Copenhagen Accord, was more in the nature of a political statement, which was not based on the texts developed by either of the AWGs.

The Copenhagen conference highlighted the nuanced and complicated politics behind the development of the international environmental law in the field of climate change. It must be appreciated that the debate is not a simplistic one in which the lines can be drawn between two negotiating positions of developed and developing countries. Rather, it involves multilateral negotiations of various interest groups and stakeholders. It is not a simplistic framework of developed vs. developing countries. The multiplicity of negotiation positions, and the varying levels of international clout, capacity and commitments is reflected indifference over the very nature and approach towards approaching the problem of climate change, and pose an almost insurmountable hurdle in arriving at a universally acceptable system of rights and obligations.

To make an attempt to sum up the debate, the positions of the negotiation countries could be broadly grouped under the following heads:

The most vulnerable countries (comprising of the African group, the least developed countries and the AOSIS (Association of Small Island States)) are worst affected by the effects of climate change, and require funds for immediate adaptation needs and financing mitigation and capacity building (For example, the African nations face the threat of desertification, droughts, loss of food security. The AOSIS faces the risk of going underwater if the sea level rises. This was brought to the attention of the international community at the Copenhagen conference by the small island nation of Tuvalu) Also, they cannot do anything substantial to mitigate climate change as the existing level of industrialization is also very low. These countries pushed for a legal agreement with binding emission targets and commitment to extend funds for adaptation, mitigation and capacity building and limit temperature increase to below 1.5 degrees above current level.

The Umbrella Group (developed countries, including the USA, Australia) wields enormous economic and political clout, and strongly opposed a legally binding agreement with emission reduction targets, citing the futility of such an agreement in the absence of reciprocal commitments by developing countries as well. However, these countries were willing to participate in climate change negotiations and contribute through extending funds, and facilitating technology transfer, subject to the establishment of an appropriate mechanism for monitoring, reporting and verification (MRV). They agreed to limit the increase in global average temperature to 2 degrees Celsius.

The EU supported the introduction of a legally binding agreement. It also acknowledged the need for funding to support adaptation, mitigation, Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (REDD) and technology and capacity building.

Developing countries with heavy industrialization (including India and China) strongly opposed any binding commitment on non-Annex I countries, emphasizing the need for industrialization, justifying current levels of emission without corresponding obligation, on the rationale that the per capita energy consumption (in technical terms, carbon footprint) is still far lower than developed economies, and the need for alleviating other concerns like poverty and underdevelopment.

What was the best outcome that could have happened, given the positions of the countries at the negotiating table?

An interesting development transpired just 24 hours before the conclusion of the conference. An internal draft document from the United Nations Climate Secretariat’s office was leaked, and according to it, even if the most compromising position the countries were willing to accept were agreed upon, it would have been insufficient by far. Even implementing all of the promises leaders have made thus far to reduce emissions would result in nothing less than an eventual climate disaster. Clearly, the entire conference was merely only talk.

What transpired?

The result of the Copenhagen conference was a hastily drafted last ditch face saving attempt, a ‘political agreement’, the Copenhagen Accord. This was drafted by the BASIC (Brazil, South Africa, India, China) countries and the USA, and noted in the COP decision. Technically, it has no binding requirement at all. The Copenhagen Accord is a sign-on document (i.e., countries who support it will be listed) and not a formal agreement within the UNFCCC framework and thus it is not clear how it will be implemented. The salient features of the Copenhagen Accord can be briefly summed up as follows:
The parties arrive at a consensus that the effort of the international community should be aimed at restricting the increase in temperature to two degrees above the current level.

The Annex 1 countries are willing to mobilise jointly short-term financing of US$30 billion for 2010-2012 and US$100 billion a year by 2020 for developing. A significant proportion of this money would flow through the “Copenhagen Green Climate Fund.”
There is also agreement to establish a Technology Mechanism to facilitate technology transfer. However, there is no detail of how this would work.

Annex 1 parties will commit to quantified economy-wide emissions targets for 2020, which will be submitted to the UN by 31st January.

Non-Annex 1 countries are to report domestic measures taken towards mitigating climate change biannually. Furthermore, they must acquiesce to an accountability mechanism (details not worked out) if they want to avail of the funds extended by the Annex I countries.

There are also provisions on REDD (Reducing Emissions from Deforestation and Forest Degradation in Developing Countries), and adaptation and market mechanisms.

The Copenhagen Accord also envisages a review of the effectiveness of the implementation of the instrument 2015.
The most recent development in this area was on 9th March, 2010, with China and India formally agreeing to be listed as parties, or signatories to the Copenhagen Accord.

The Copenhagen Accord no doubt provides the basis for significant country-by-country carbon cuts, but unfortunately, this may not be sufficient. The shift of emphasis from a global deal to national action, in fact, is the most obvious proof of the failure of the international community to generate consensus upon an equitable and acceptable agreement on burden sharing regarding climate change mitigation action.

And if you’re wondering what lies ahead, there may be reasons to be optimistic, but only modestly so. For one, the domestic targets submitted pursuant to the Copenhagen Accord indicate that for the first time we have all the major economies agreed to action covering over 80% of the world’s emissions. However, in the absence of any commitment under a binding legal agreement, spelling out an acceptable and equitable, but effective path to address climate change, an effective answer to the problem remains elusive. The next Conference of Parties (COP 16) is scheduled to be held in Mexico in 2010, but a binding legal agreement is unlikely to transpire by then. However, one hopes that it does, soon.

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