I. INTRODUCTION
There is a flurry of diplomatic activity on climate change this year. In addition to the 10 weeks of scheduled inter-governmental negotiations under the auspices of the UN Framework Convention on Climate Change, there are processes such as the G-8, the Major Economies Forum, and that convened by the UN Secretary General, all of which involve considerable investment of negotiating capital. Yet notwithstanding this intense and continuing engagement at the highest level, many fundamental disagreements remain, including, rather tellingly, on what exactly it is that States are negotiating.
The climate change regime comprises the United Nations Framework Convention on Climate ChangeFootnote 1 and its Kyoto ProtocolFootnote 2—both of which are in force,Footnote 3 have concrete content and are binding. The emission reduction commitments made thus far however have been inadequateFootnote 4 and are inadequately implemented.Footnote 5 Moreover, the emission reduction targets and timetables contained in the Kyoto Protocol apply to the first commitment period which comes to an end in 2012.Footnote 6 And the US, responsible for 20 per cent of GHGs, is not party to the Kyoto Protocol.Footnote 7 In December 2007 the international community adopted the Bali Action Plan, which launched a process to reach an ‘agreed outcome’ on long term cooperative action on climate change, with a scheduled end in Copenhagen, December 2009.Footnote 8 The process launched was christened the Ad Hoc Working Group on Long-Term Cooperative Action (AWG-LCA).Footnote 9 The phrase ‘an agreed outcome’ in the Bali Action Plan suggests a lack of agreement on the legal form that the outcome of this process could take, a lack of agreement that continues to haunt the process 20 months into the two-year road leading to Copenhagen. At the Poznan Climate Conference in December 2008, Parties authorized the Chair of the AWG-LCA to prepare a draft negotiating text by June 2009 but they were clear that this text had to be drafted in language ‘that does not prejudge the form of the agreed outcome’.Footnote 10
There are a range of legal form options for a new climate instrument, and the choice between them for States is predicated primarily on political and strategic considerations. Nevertheless the legal status, procedural requirements, symbolic signalling effects and regime-building characteristics of different legal form options will play an important role in determining the legal form of the Copenhagen ‘agreed outcome’. This article identifies and explores the range of legal form options available to States in the negotiation process, and which outlines the political and strategic considerations at play and will ultimately govern choice of legal form. This article argues that one of the most significant factors hindering substantive progress on a post-2012 climate agreement is what is termed here as the ‘post-Kyoto stress disorder’, a lack of trust amongst some developing countries that industrialized countries will, given current and past form, honour their commitments, and/or take the lead in the new climate agreement. Anxiety (and wariness) that industrial countries will talk the talk of equity, but in effect seek to shift the burden of responsibility to developing countries in the ‘agreed outcome’ at Copenhagen, is now palpable in the negotiations.Footnote 11 This article makes the case that post-Kyoto stress disorder will likely prevent certain legal form options from acquiring traction in the process and favour others.
II. THE COPENHAGEN AGREED OUTCOME
The chapeau to the first operative paragraph of the Bali Action Plan 2007 reads:
[The Conference of Parties (COP)] 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 …
The term ‘an agreed outcome’ in the Bali Action Plan implies a lack of agreement on both the legal form that the likely outcome of this process could take, as well as level of ambition that it should reflect. It could be argued that the phrase ‘and adopt a decision’ that follows ‘an agreed outcome’ indicates that the agreed outcome should take the form of a decision. However, a COP decision could decide to adopt a Protocol, append it in an Annex to the decision, and invite Parties to sign and ratify it as was the case with the Kyoto Protocol.Footnote 12 The phrase ‘and adopt a decision’ does not thereby preclude certain other legal forms of the ‘agreed outcome’.
A. The Legal Form
The Berlin Mandate, comparable to the Bali Action Plan in so far as it too launched a process to advance the climate regime, explicitly specified the legal form of the outcome—‘a Protocol or another legal instrument’.Footnote 13 The legal form that the outcome of the Bali Action Plan could take is however is left open. A range of legal form options exist, among them:
▪ A legally binding instrument either to:
— supplement the FCCC and Kyoto Protocol, or
— replace the Kyoto Protocol;
▪ An amendment or set of amendments to the FCCC including to the Annexes, and by adding Annex/es;Footnote 14
▪ A single COP decision or a set of COP decisions to further implement the FCCC;
▪ A Ministerial Declaration containing the elements of the political agreement, details of which may be worked out in 2010 or later; and
▪ Any combination or package of the above.
Options other than a Protocol replacing Kyoto would likely be accompanied by a set of amendments to the Kyoto Protocol, in particular to Annex B, pursuant to Kyoto article 3(9), requiring new targets for industrialized countries. There is a process underway—Ad Hoc Open-Ended Working Group to consider further commitments for developed countries beyond 2012 under the Kyoto Protocol (AWG-KP)—for this purpose.Footnote 15
B. The Level of Ambition
The Bali Action Plan stopped shy of prescribing the level of ambition that the ‘agreed outcome’ should reflect. Earlier drafts of the chapeau recommended ‘a comprehensive and effective global agreement for action’ and a ‘comprehensive agreement for action’. Through the last few days of negotiations the term ‘comprehensive’ ceased to refer to the action to be taken and came to qualify the process to be launched. Since no particular level of ambition is prescribed, the ‘agreed outcome’ in 2009 could, on a conservative reading, merely be to continue the negotiation process for a further period of time. There is no requirement placed on Parties to agree to particular action in 2009 or even ‘appropriate action’ as in the Berlin Mandate.
The level of ambition and the legal form are closely linked, and it is necessary first to identify the elements essential to characterize the Copenhagen agreed outcome as a successful one before options for its legal form can be explored. This is in keeping with the view that form follows function. Needless to say, there is no consensus among Parties at this stage about the elements essential to characterize an outcome as a successful one. The elements listed below reflect a subjective assessment of that which is necessary for an agreement to be environmentally effective,Footnote 16 and to build on progress made thus far in the climate regime.
C. Elements of a Successful Outcome
The following, amongst others, could be considered elements of a successful outcome:
▪ It is legally binding (or at least some important elements of it are incorporated in a legally binding instrument);
▪ It creates the conditions necessary to engage all developed countries;
▪ It creates the conditions necessary to engage developing countries (in particular those that contribute significantly to global GHGs);
▪ Its ambition is tied to a stabilization of GHG levels as prescribed by the IPCC (the exact level at which stabilization must occur is a political determination and will have to be determined collaboratively);Footnote 17
▪ It provides the necessary means of implementation (technology, finance, capacity, and access to market-based instruments) for mitigation and adaptation;
▪ It contains mechanisms to ensure measurement, reporting, verification, and compliance; and
▪ It simplifies the existing legal and institutional ecosystem, viz it does not create an unduly complex and unwieldy stratum to the existing apparatus of climate institutions.
The challenge that States will face in the next few months is to determine the elements of the ‘agreed outcome’ that are best reflected in a new Protocol, and those that could be adopted by COP decisions. This determination will need to be made keeping in mind the extent to which States would like the new regime, or some of its elements, to be embodied in a legally binding form. There is little agreement yet on this aspect of the negotiations. At the 14th COP in Poznan in December 2008, the President organized a ministerial round table on a ‘shared vision’ on climate change. The summary of this informal round table prepared by the Chair suggested that participants had expressed a ‘resounding commitment to and optimism for achieving an agreed outcome at COP 15 that can be ratified by all’.Footnote 18 Both in the informal negotiations on the last night, as well as at the final plenary, this assessment was challenged by many developing countries including India and China.Footnote 19 They argued that there was no consensus on the legal form of the outcome, and the negotiations should stay true to the Bali Action Plan which only reflected an agreement to reach an ‘agreed outcome’ not a ratifiable one. And, the final decision mandating the Chair to produce a negotiating text, expressly enjoined him to do so in a way that would ‘not prejudge the form of the agreed outcome’.Footnote 20
A legally binding treaty has considerable symbolic value. It would be in keeping with the gravity of the climate change problem and it would withstand the high level of public scrutiny that the process is subject to. It would also provide certainty that would instil confidence in the market. But a treaty will likely take several years to enter into force, depending both on the entry into force requirements that States introduce in the treaty and domestic ratification procedures.Footnote 21 As a result at least some elements of the new regime will need to be embodied in COP decisions, which often impose mandatory requirements without being legally binding, and which can be applied immediately. If the Kyoto and FCCC tracks continue to operate in parallel, States will also need to untangle and ensure coherence across the complex institutional supervision and compliance systems that are in place under Kyoto and those that will be created to measure, report and verify under the ‘agreed outcome’. The procedural and legal considerations/aspects of various legal form options are explored below.
D. A Legally Binding Instrument under the FCCC
Several countries have expressed a preference for the Copenhagen agreed outcome to take the form of a new legally binding instrument. Views differ on whether such an instrument should replace or supplement the Kyoto Protocol. Japan, Australia, Canada, New ZealandFootnote 22 and the EU have expressed a preference for a treaty that replaces the Kyoto Protocol; the AOSIS, the African Group and Costa Rica for an instrument that supplements it.Footnote 23 Views also differ on the nature of this instrument. The US has expressed a preference for an ‘implementing agreement’Footnote 24 that allows for legally binding approaches, while Australia, New Zealand and Canada have expressed a preference for a treaty instrument incorporating national schedules which would contain elements that are binding and others that are not.
A Protocol to the FCCC is a legally binding instrument. A formal account of ‘bindingness’ would suggest that the negotiated legal instrument in question would render a particular State conduct non-optional as well as judicially enforceable.Footnote 25 A Protocol or another legal instrument will be binding in this sense, although the likelihood that it will be litigated and judicially enforced in an international court of law is limited.Footnote 26 It is more likely that non-compliance will be dealt with primarily under the system created within the regime, however limited it might be.Footnote 27 That is, non-compliance with the Kyoto Protocol will be addressed by the Kyoto compliance system. It is worth noting here that should States decide not to negotiate a second commitment period to the Kyoto Protocol, non-compliance with targets by Annex B Parties, such as Canada,Footnote 28 is likely to go unaddressed, as the only punitive consequence that the committee can apply is a deduction at a penalty rate from the Party's assigned amount for the second commitment period.Footnote 29 Whether the non-compliant country might bear international responsibility however is a distinct enquiry.Footnote 30
Functionalist logic would suggest that it is more useful to draw an operational distinction between treaty obligations (which emanate from hard law instruments and are capable of being enforced judicially), treaty-generated legal commitments (which may emanate from hard law or soft law instruments but do not seem to be capable of judicial enforcement) and principled expectations (which are created by seriously negotiated international instruments and therefore have an operational significance for those entities responsible for their making and maintenance, but are based as much on ethical considerations of good faith and public morality as on strictly legal considerations).Footnote 31 Both treaty-generated legal commitments and principled expectations are as likely to be effective as treaty obligations. This is because Parties are more likely to accept higher aspirational targets if they adopt what they perceive as non-binding obligations, though they may in effect be non-optional.Footnote 32 States will need to decide whether the symbolic value of adopting a legally binding instrument is worth the likelihood of less stringent targets, as well as the lengthy time lag before the instrument enters into force.
III. THE PROCEDURES FOR ADOPTING A PROTOCOL
A. The Six Month Rule
FCCC article 17 requires that the ‘text of any proposed protocol shall be communicated to the Parties by the Secretariat at least six months before such a session.’Footnote 33 A similar rule applies to proposed amendments to the FCCCFootnote 34 and the Kyoto Protocol.Footnote 35 However, in the case of amendments the notice has to be provided six months before the meeting. Every session consists of several meetings. In the case of a new Protocol, the text would have had to be communicated by 6 June 2009. And in the case of amendments the text would have had to be communicated by 17 June. COP-15 at Copenhagen runs from 7 to 18 December 2009. Several questions arose in the application of the six month rule in the ongoing negotiations.
B. Who May Propose a Protocol?
The relevant treaty text does not provide any guidance on who may propose a protocol that can then be communicated to the Parties.Footnote 36 Does the Protocol text need to emerge from a multilateral process initiated by Parties, or can a single Party submit a text that will be communicated to Parties? If both options are possible, can one of these texts function as sufficient notice for the other? That is, is the purpose of the six month rule to provide notice that a treaty will be proposed for adoption, or to provide notice of the substantive ideas presented in the text?
The Chair of the AWG-LCA was mandated to produce a text that does not prejudge the form of the agreed outcome.Footnote 37 This text was made available in May, and discussed for the first time in June. In theory if a communication had not been sent out to Parties before 6 June, a Protocol on the basis of this text could not be presented for adoption in December in Copenhagen. In order to ensure that the option of adopting a treaty in December remained on the table, three routes were available.
The first route would have been for the AWG-LCA to mandate the Chair to communicate the negotiating text to Parties. In the case of the Kyoto Protocol, the Chair was mandated by the Ad Hoc Group on the Berlin Mandate (AGBM) to produce a text to be communicated to Parties, in all six UN languages, in time to comply with the six month rule.Footnote 38 It is worth noting, however, that the AGBM provided such authorization to the Chair eight months before that the Kyoto Protocol was presented for adoption.Footnote 39 In the AWG-LCA process, given the wide range of views on the legal form options among Parties, and the limited time available to reach a collective decision, Parties did not provide such a mandate to the Chair.
The second route, was for its Chair, acting independently, to request the Secretariat to communicate the text to Parties before the 6 June deadline. This would have been risky in that its Chair was not expressly mandated to do this. It could however have been justified on the grounds that this action would merely have retained all legal form options on the table; it would not have prejudged the particular legal form option that would be presented for adoption. In fact it could even be argued that had the Chair not done so it would have prejudged the legal form of the outcome. If due notice had not been provided, it would have excluded the treaty or amendment options and left Parties with the sole option of adopting COP decisions. If the Chair had chosen this route, he would have needed to ensure that the communicated text was drafted in language that contained options for the use of certain terms,Footnote 40 and that the text contained final clauses (ie provisions dealing with signature, ratification, acceptance, approval, accession, denunciation, amendment, reservation, entry into force, settlement of disputes, depositary matters and authentic texts),Footnote 41 but placed in brackets to indicate that should Parties wish to adopt the negotiating text as a Protocol these would need to be added, and should they choose not to, these could be excluded. This route would have placed the Chair in a difficult position, given the diverse views on legal form, and his limited mandate from Parties. As such the Chair chose not to adopt this route.
The third route would be for an interested Party to request the Secretariat to communicate to Parties that it intended to present the Chair's negotiating text for adoption as a Protocol in December. Although FCCC Article 17 does not expressly allow Parties to present Protocols, it is arguable that this is permissible. First, because in a party-driven process everything that is not expressly prohibited is permitted and, secondly, because during the AGBM process, AOSIS, among others, proposed a fully crafted draft Protocol, which was communicated to Parties.Footnote 42 This may have some persuasive precedential value.
The third route was the one that was eventually taken in June. It emerged during the deliberations that the precise legal status and future of the Chair's text, on the basis of which Parties were working, was unclear. In the lead up to the 6 June deadline, Australia, Japan and Tuvalu requested the Secretariat to communicate their draft Protocols and the US its ‘implementing agreement’Footnote 43 to Parties under FCCC article 17(2). These will be considered under an agenda item at COP-15. The Chair's negotiating text will be presented to the COP under a separate agenda item as part of a Report of the Chair on the work of the AWG-LCA. The elements of the Chair's negotiating text could conceivably be converted into COP decisions, but given the six month rule, the Chair's negotiating text could not be presented to Parties as the basis for a draft Protocol. Costa Rica, which decided to step in, prefaced the Chair's text with preambular provisions and finished it with final clauses and draft annexes, and submitted the text as the basis for the negotiation of a legally binding instrument at COP-15. This initiative from Costa Rica ensures that the Chair's text, among others, will be presented to the COP for adoption. However it is worth noting that the Chair's 49-page text has evolved, in the course of negotiations, into a text which is 200 pages long, has over 2000 brackets, and contains several proposals for restructuring.Footnote 44 Whether the Chair's text as originally conceived and communicated to Parties is recognizable in what emerges from the negotiations, may well determine if the Costa Rica Protocol can function as sufficient notice under the six month rule for the outcome of the negotiations to be presented to Parties for adoption as a treaty.
It is worth noting in this context that the notice, if Kyoto practice is of persuasive value, is of the substantive ideas in the proposal—of the conceptual place-holders—not of the fact that a treaty will be presented for adoption. The Kyoto Chair had indicated at the time that the Kyoto negotiating text was produced that ‘proposals submitted after the production of the negotiating text should be clearly derived from concepts already included within it and should not contain substantially new elements.’Footnote 45
C. What Form Should the Text Take?
The relevant treaty provisions do not provide any guidance on the nature of the text that is required to be communicated six months in advance of Copenhagen. Does the text have to be bracket-free agreed text, draft negotiating text, substantially agreed text, or a compilation of Parties' proposals? Are there any threshold requirements in terms of structure and coherence in the proposed text? Or is it sufficient merely that it be labelled a Protocol? If Parties are free to submit and propose alternative Protocols or competing amendments for adoption, as appears to be the case, the text referred to must mean draft text, subject to subsequent negotiation. However, if the six month rule is intended to give Parties time for reflection on the proposed Protocol, an unstructured, much-bracketed, many-optioned text may not serve the purpose. It is worth noting that for Kyoto the AGBM provided the Chair with a mandate to produce a draft.Footnote 46 The draft contained many brackets but it had a coherent structure which is reflected in the Kyoto Protocol. And, as highlighted above, the Chair had requested Parties to ensure that no substantively new proposals were introduced after the negotiating text was communicated. In essence States will need to consider the tabled text as reasonable basis for negotiation. The text that AOSIS had tabled as a draft Protocol before Kyoto was not considered by the UN Office of the Legal Counsel, on being requested for an opinion, as a sufficient basis for negotiation.Footnote 47
Ideally, by June 2009 Parties should have decided whether they wished to adopt a new Protocol, as well as reached a coherently structured negotiating text as a basis for negotiation. Parties could not agree collectively on the former before the 6 June deadline, but the communication of the five instruments—four Protocols, one of which is based on the Chair's text, and one implementing agreement—in time has effectively retained all legal form options on the table.
D. Voting for Adoption
FCCC Article 17 relating to Protocols does not specify a particular voting requirement for adoption of Protocols.Footnote 48 In its absence and in the absence of adopted Rules of Procedure governing voting, unless Parties adopt a particular voting procedure ad hoc, any new Protocol will need to be adopted by consensus. This may in turn lead to levelling down the substantive ambition of the Protocol, whether in its clear terms, or as reflected in the proliferation of constructively ambiguous phrases or aspirational rather than prescriptive language. In the light of this, if feasible, States may wish to decide ad hoc on a voting procedure for any new Protocol. Voting, however, on such a voting procedure would have to be by consensus.
E. Entry into Force Requirements
Since this new phase of negotiations is designed to draw in a wider range of actors and commitments than Kyoto, any new Protocol will need to have entry into force requirements designed to reflect this.Footnote 49 These in practice would be similar to the Kyoto entry into force requirement that sought a certain percentage of the GHG emissions from industrialized countries to be represented before entry into force. A new Protocol's entry into force requirement may need to take IPCC assessments into account in terms of who needs to participate, when and how.Footnote 50 These entry into force requirements, however, if framed to ensure that all or most of those essential elements to the success of the Protocol are represented, will likely take several years to be fulfilled.
The Kyoto Protocol's experience may not be typical, but it took eight years to enter into force. And at least some of the countries who it will be essential to engage have the proven nerve to hold out in the face of strong international disapproval. Further ratification procedures vary from country to country based on constitutional and legal specificities. In countries where international treaties need to be translated into domestic legal instruments before they take effect, the vagaries of domestic politics and legal processes have the potential to create further delay.
Given the imperatives of science and the urgency of mitigation action on the one hand and the need for high threshold requirements for entry into force on the other, it is important to consider incorporating provisions on provisional entry into force and provisional application of any new treaty.
1. Provisional entry into force
A treaty may enter into force provisionally—pending fulfilment of the formal criteria for entry into force—if the text of the treaty provides for it to do so, or if in the absence of such a text, parties agree between themselves to do so. A case in point is article 42 of the International Coffee Agreement 2007Footnote 51 which provides, inter alia, that if the agreement has not entered into force ‘definitively’ by a certain date, it shall enter into force ‘provisionally’ on that date. The interests of legal certainty demand that for those Parties that have agreed to bring the treaty into force provisionally, the provisions of the treaty are legally binding.Footnote 52
2. Provisional application pending entry into force
The need for immediate action on climate change in advance of entry into force was recognized during the negotiations leading to the FCCC, hence the discourse at the time on ‘prompt start’ of the FCCC.Footnote 53 In the context of the Kyoto Protocol, an article on provisional application was proposed by Australia but not considered.Footnote 54 Article 25 of the Vienna Convention on Law of Treaties provides for provisional application of a treaty pending its entry into force.Footnote 55 Again, as with provisional entry into force, the treaty itself may provide for provisional application or the negotiating States may agree to apply the treaty provisionally in advance of entry into force. The COP did precisely this in facilitating the prompt start of the Clean Development Mechanism (CDM), before Kyoto entered into force.Footnote 56
There are a range of examples in treaty law of provisional application. The General Agreement on Tariffs and Trade (GATT) 1947 is an oft-quoted example. The GATT was applied provisionally by a Protocol of Provisional Application for nearly four decades.Footnote 57 The Implementation Agreement of the UN Convention on the Law of the Sea 1994,Footnote 58 and the Energy Charter 1994,Footnote 59 are additional examples. Typically, provisional application is rendered subject to national legal systems.Footnote 60 In addition, in some cases a certain degree of flexibility is built in. The Antarctic Treaty Environmental Protocol 1991 provides for provisional application such that pending entry into force the treaty is applied ‘in accordance with their [States’] legal systems and to the extent practicable'.Footnote 61 Such formulations permit considerable flexibility in application and are therefore attractive to States.
3. Linkage arrangements
It is worth noting that given the political necessity of a ‘package deal’ that links ambition in terms of mitigation and support between different sets of Parties subject to different legal agreements (assuming the Copenhagen agreed outcome is supplementary to the Kyoto Protocol), there will need to be provisions in the treaty that link entry into force of both the amendments to the Kyoto Protocol KP and the new treaty by 2012. Entry into force of one can be made contingent on the entry into force of the other.
IV. A LEGALLY BINDING Instrument Under The FCCC TO REPLACE THE KYOTO PROTOCOL
Japan has expressed a preference for a ‘new Protocol, ensuring fairness and effectiveness’.Footnote 62 Although it did not explicitly call for this new Protocol to replace the Kyoto Protocol, this can be inferred from the draft Protocol that it submitted in April 2009 which mirrors the Kyoto Protocol, but rewrites its central provisions relating to the mitigation obligations of Parties.Footnote 63 Australia, Canada, New Zealand and the EU, albeit tentatively, have also expressed a preference for a single treaty under the FCCC.Footnote 64 The US, which is not a Party to the Kyoto Protocol, has refrained from expressing a view on whether its implementing agreement should replace the Kyoto Protocol or not would be safe to assume that it would so wish.Footnote 65
Most industrialized countries prefer this option because any treaty that replaces the Kyoto Protocol would place the obligations of all countries—in particular the US, and the large developing countries—in the same legal and institutional framework. It would also ensure that all Annex I Parties are subject to comparable legal obligations that are similarly enforced and/or facilitated. In addition this option would ensure policy coherence, universal participation, as well as institutional and legal consistency and coordination in the international regulation of climate change. Most of the countries that favour this option expect that many key provisions of the Kyoto Protocol will be scavenged and recycled within the new instrument, in particular the provisions relating to review and accounting in Kyoto articles 5, 7 and 8.
A. Terminating Kyoto
Several issues arise in the context of a Protocol designed specifically to replace the Kyoto Protocol. The Kyoto Protocol does not contain a provision on its termination. In its absence, its termination may take place ‘by consent of all the Parties after consultation with other contracting States’Footnote 66 or by ‘conclusion of a later treaty relating to the same subject-matter’.Footnote 67 In the case of the latter, Parties must have ‘intended that the matter should be governed’ by the later treaty, or the provisions of the later treaty are so incompatible with the earlier one that they are not capable of being applied at the same time.Footnote 68 If either because of lack of appropriate ‘intention’ (notoriously difficult to determine), or because some aspects of the later treaty can be applied in conjunction with the earlier one, Kyoto is not deemed terminated or suspended, article 30 of the Vienna Convention, a legal and interpretational minefield, applies.Footnote 69 If the Parties to the earlier treaty are also Parties to the later one, the earlier treaty applies to the extent of incompatibility. If the Parties are not the same, as is likely to be the case here, the situation is rather more complex. To avoid creating a legal minefield, States will need either to specify clearly that the Kyoto Protocol is terminated, or if that is not the intention, specify the differing areas of operation of the two treaties. If a treaty is terminated it releases Parties from any obligation to further perform the treaty.Footnote 70
It is likely, however, that developing and industrialized countries will disagree on terminating Kyoto. Some or many Annex I Parties may choose to withdraw from Kyoto, which States are permitted to do by virtue of Article 27.Footnote 71 This may lead to a situation in which the number of Parties representing the necessary proportion of Annex I GHG emissions may fall below the requirements for entry into force.Footnote 72 Kyoto will not terminate as a result of this alone.Footnote 73 But it will not be operational for those countries that have withdrawn from it, and if this represents a majority of Annex I countries, there may be little of Kyoto left to operationalize. It is worth noting that should Kyoto be terminated, it can be subsequently revived by Parties through a short simple treaty.Footnote 74
B. Cherry-Picking and Inheriting from Kyoto
If Parties decide to terminate or supersede Kyoto then they will have to determine which parts of Kyoto they would like to carry over to the new treaty, and which parts of it they will discard. This cherry-picking is evident in the proposed Japanese ProtocolFootnote 75 as well as in Australia's preferred one-treaty model.Footnote 76 Such cherry-picking between substantive Kyoto provisions in itself may well be a contentious exerciseFootnote 77 but, in addition, Parties will have to decide which CMP (Conference of Parties to the FCCC Meeting as the Meeting of Parties to the Kyoto Protocol) decisions, and to what extent, and by what means, will be carried forward.
The compliance regime of the Kyoto Protocol, which fleshes out Protocol article 18, is contained in a CMP decision.Footnote 78 Assuming Article 18 is replicated in the new treaty, can this regime be carried forward as well? Should Parties choose to do so, they can introduce a provision in the new treaty to carry such a system forward. Article XVI of the World Trade Organization Agreement 1994 contains a provision relating to the earlier GATT, that might be instructive in this regard: ‘Except as otherwise provided under this Agreement ....the WTO shall be guided by the decisions, procedures and customary practices followed by the Contracting Parties to GATT 1947 and the bodies established in the framework of GATT 1947.’Footnote 79
V. AMENDMENTS TO THE FCCC
Amendments to the FCCC may conceivably be part of the Copenhagen agreed outcome that Parties arrive at. The mandate of the AWG-LCA, tasked with negotiating the agreed outcome, is to ‘enable the full effective and sustained implementation of the Convention’.Footnote 80 Amendments to the Convention itself may arguably not be permissible, a point highlighted by Brazil, and India and Saudi Arabia in their recent submissions. Brazil argues that the limited mandate given to the AWG-LCA by the Bali Action Plan does not authorize a renegotiation of the commitments, or the ‘careful balance between those it establishes for Annex I Parties and non-Annex I Parties.’Footnote 81 India points to the language in the plan on a shared vision for long-term cooperative action which contains the phrase ‘in accordance with the provisions and principles of the Convention’, to argue that no amendments to the FCCC are permissible.Footnote 82 Some industrialized countries, however, would like this round of negotiations to re-negotiate the Annex I/non-Annex I categories of Parties in the Convention.Footnote 83 It is this that led to the use of the language ‘developed country Parties’ and ‘developing country Parties’ rather than the Convention categories of Annex I and non-Annex I Parties in the Bali Action Plan. Differentiation between non-Annex I countries, and graduation from non-Annex I to Annex I, is a contentious issue.Footnote 84 New Zealand has suggested amending FCCC article 4 so as to enable an increase in the list of countries with financial obligations in FCCC Annex II.Footnote 85
New annexes to the FCCC, if deemed politically desirable, could be created through amendments. These new Annexes may list developing countries that have offered to adopt voluntary commitments/aspirational targets/pledges, or to list nationally appropriate mitigation actions (NAMAs) and/or sustainable development policies and measures that they have chosen to undertake.Footnote 86
Even if amendments to the FCCC are not permissible as part of the Copenhagen agreed outcome, concerns expressed in the negotiations that some non-Annex I countries that are economically advanced (as indicated by their membership in the OECD or the EU) should be part of Annex I, could be addressed by amendments to the FCCC Annexes. Some countries might decide to, or be persuaded to, join the FCCC Annexes. Malta, part of the EU but currently non-Annex I, has already indicated its intention to join Annex I.Footnote 87
Amendments to the Convention, including its Annexes, require consensus for adoption or, failing consensus, a three-quarters majority vote of the Parties present and voting in the meeting. Voting, however, is problematic as Parties are yet to agree on Rule 42 (Voting), of the draft Rules of Procedure, which have been applied, with the exception of Rule 42, since 1996.Footnote 88 The six month rule discussed above applies to amendments as well, bearing in mind that for amendments the notice period is six months before the meeting at which it is proposed for adoption, not the session.
Parties could decide in Copenhagen to simplify procedures for amending Annexes. Inclusion into and exclusion from the FCCC Annexes is, in practice, a lengthy process. The experience of Turkey is a case in point. It took Turkey five years to have its name removed from FCCC Annex II.Footnote 89 It argues in the current negotiations that it is a ‘sui generis case vis-a-vis the Annex I Parties’ and as such plans to take ‘NAMAs for emission limitation’ and adopt a ‘no-lose target’.Footnote 90 Such actions under the Bali Action Plan are prescribed for developing countries, not for developed countries. Turkey is making the point that it is a developing country, albeit in Annex I. The language of FCCC article 4(2) that prescribes certain commitments for ‘developed country Parties and other Parties included in Annex I’ supports Turkey's implicit assumption that Annex I includes Parties that are not developed.
The six month rule for amendments required Parties to identify by 17 June 2009 those elements of the Copenhagen package that need to be brought into existence through amendments to the FCCC and Kyoto Protocol, including new Annexes, and amendments to Annexes.Footnote 91 Although New Zealand had proposed an amendment to FCCC article 4 in a submission, it did not formally request communication under FCCC Article 15(2) of its intention to seek an amendment at COP-15. Therefore, no proposals for amendments to the FCCC will be presented to COP-15.
VI. COP DECISIONS
COP decisions are emerging as the favoured option among large developing countries like Brazil,Footnote 92 India,Footnote 93 the Philippines,Footnote 94 and Colombia.Footnote 95 In addition, several other developing countries have framed their submissions either in narrative or in language that explicitly or implicitly lends itself to COP decision text rather than treaty language.Footnote 96 Some of these countries argue, on a textual analysis of the Bali Action Plan, that the Plan only mandates a COP decision.Footnote 97 The Philippines considers COP decisions to be ‘legally binding’, whilst others consider COP decisions operationally significant, and as such sufficient for the purposes of fulfilling the Bali Action Plan. Egypt, while toeing the African Group line, has nevertheless argued in oral interventions the merits of COP decisions, in particular that they do not permit Parties to opt out, while treaties do. Algeria has in a similar vein expressed concern that the singular format of the current negotiating text may preclude the possibility of hiving off sections of the text as COP decisions.
Notwithstanding these initial statements of position, several Parties have stressed in oral interventions at the negotiations that ‘form follows function’. In doing so, they have kept open the possibility that should function and content require it, they could be persuaded to change their position. Brazil has argued that once there is agreement on content, if COP decisions are deemed insufficient to achieve the agreement, alternative legal forms could be explored. Brazil has also added that form should follow ambition. If the collective ambition is poor it would be pointless to place it in a legally binding text. India, of the large developing countries, appears the most reluctant to consider an agreement that extends beyond COP decisions. An analysis of the legal status, operational significance and limits of COP decisions may serve to explain this initial preference large developing countries have indicated for COP decisions.
A. Legal Status of COP Decisions
Decisions rendered by Conferences of PartiesFootnote 98 may be considered as a ‘subsequent agreement between the Parties regarding the interpretation of the treaty or the application of its provisions’Footnote 99 and as such will be relevant factors in interpreting the treaty.Footnote 100 Their precise legal status, however, will depend on the enabling clause,Footnote 101 the content of the decisions, Parties' behaviour and legal expectations,Footnote 102 all of which are prone to varying interpretations. From a formal legal perspective COP decisions are not, absent explicit authorization,Footnote 103 legally binding.Footnote 104 Equally, COP decisions cannot impose substantive new obligations on Parties, as such substantive new obligations would require State consent expressed through the conventional means (signature/ratification/etc). This does not, however, detract from the operational significance and legal influence that COP decisions have come to acquire in multilateral environmental agreements, and in particular in the climate regime.
B. COP Decisions in the Climate Regime
The FCCC and the Kyoto Protocol authorize the COP to engage in the progressive normative and institutional development of the regime.Footnote 105 The COP is authorized ‘to make, within its mandate, the decisions necessary to promote the effective implementation of the Convention.’Footnote 106 To this end, it is also authorized to ‘exercise such other functions as are required for the achievement of the objective of the Convention as well as all other functions assigned to it under the Convention.’Footnote 107
The COP has significant law-making powers in relation to Parties' substantive obligations. It has indirect law-making powers in that it is authorized to negotiate amendmentsFootnote 108 and ProtocolsFootnote 109 to agreements (indirect because these require ratification by Parties). It has direct or ‘genuine’ law-making powersFootnote 110 in that it is authorized in some cases to develop rules, as for instance for emissions trading,Footnote 111 and these rules, although not legally binding, have mandatory force.Footnote 112 The COP also adopts soft law measures.
COP decisions have enriched and expanded the normative core of the regime by fleshing out treaty obligations,Footnote 113 reviewing the adequacy of existing obligations,Footnote 114 and launching negotiations to adopt further obligations.Footnote 115 COP decisions have also created an elaborate institutional architecture to supervise compliance with obligations. The Clean Development Mechanism Executive Board, the Joint Implementation Supervisory Committee and the Compliance Committee were authorized by the Kyoto Protocol, but constituted and operationalized by COP decisions.
The operational significance of COP decisions is further strengthened by the fact that agreed language is of particular import in the environmental field. Treaty language in the environmental field is often marked by constructive ambiguity reflecting and auguring protracted dissonance. Therefore, when agreement is reached, the agreed language, however tenuous the agreement and whatever the legal form it assumes, is highlighted, cited and reproduced in subsequent legal texts (which may be of greater legal weight). Select language from the Berlin Mandate, a COP decision, for instance, is reflected verbatim in operational provisions of the Kyoto Protocol.Footnote 116
In addition, COP decisions such as the Berlin Mandate and the Bali Action Plan that launch negotiations towards a legal instrument or ‘agreed outcome’ create a framework (with the attendant boundaries) for the negotiations, which Parties may but seldom diverge from. The Berlin Mandate specifically decries new commitments for developing countries and the Kyoto Protocol contained none. The ongoing negotiations towards a Copenhagen outcome have framed the discussions with explicit reference to the mandate contained in the Bali Action Plan.Footnote 117 At the Accra negotiations in August 2008 Parties authorized the Chair to prepare a document assembling proposals by Parties. This document was required to be ‘in accordance with the structure of paragraph 1 of the Bali Action Plan’.Footnote 118 The Assembly of Proposals prepared by the Chair of the AWG-LCA and the subsequent negotiating text are faithful to the structure of the Bali Action Plan.Footnote 119
A whole host of consequences can be generated through COP decisions at Copenhagen. The ‘Registry’ of developing country mitigation actions and pledges, proposed by South Africa,Footnote 120 and the Republic of Korea,Footnote 121 can be created through a COP decision. Parties can extend the deadline for negotiations through a COP decision—the deadline in the Bali Action Plan, itself a COP decision, can simply be extended through another COP decision, which would replace the earlier agreement with a new one. A Ministerial Declaration reflecting the elements of a political agreement, if it represents the will of the COP in its entirety can also be adopted through a COP decision. An example, of one such in the climate process is the Delhi Ministerial Declaration on Climate Change and Sustainable Development 2002.Footnote 122
C. The Limits of COP Decisions
However, as COP decisions are neither legally binding, in the formal sense, nor capable of creating substantive new obligations, they are limited and limiting instruments in the evolution of the climate regime.
The initial preference that large developing countries have indicated for COP decisions may be explained in this context. These countries perceive COP decisions as a ‘safe harbour’. In addition to the fact that COP decisions, unlike treaties, cannot bind the burden sharing arrangement in the FCCC cannot be fundamentally altered through COP decisions. In contrast, a new legal instrument could alter the conceptual apparatus of the FCCC.Footnote 123 Several industrialized countries have advocated in their proposals that all Parties should be required to take similar types of actions (even if these are not identical in content or stringency), of the same legal character (whatever that might be) and offering the same flexibility (or lack thereof). In particular, these proposals are seeking comparability of ‘commitments’ between developed and ‘advanced’ developing countries.Footnote 124 Most developing countries consider such proposals as breaching the FCCC, in particular the principle of common but differentiated responsibility, as well as the Bali ‘firewall’.Footnote 125 At negotiations in March 2009, India requested the Chair, who was mandated to produce a text by May, to relate operative paragraphs of his text to the specific provisions of the FCCC whose implementation they were intended to enhance. As the Chair's text had to be based on Parties' proposals, and he could not engage in the exercise of interpreting the intent of Parties, he requested Parties to consider indicating in their future submissions the relationship between their proposals and the specific provisions of the FCCC or Bali Action Plan they were intended to enhance.Footnote 126 Few countries followed this advice. And, one of the most significant disagreements in the negotiations today lies in the extent of conformity (or lack thereof) between certain proposals and the FCCC burden-sharing arrangement. In the circumstances, developing countries consider COP decisions to represent a safe and reassuring option. Fundamental changes to the FCCC burden-sharing arrangement are less likely to be implemented through COP decisions.
Should COP decisions be the chosen route forward, however, given their limits they will pose fundamental constraints on the evolution of the post-2012 legal architecture. If the Copenhagen agreed outcome is reflected solely in COP decisions, the mitigation commitments of the US, which is not a party to the Kyoto Protocol, will—like developing countries, but unlike the rest of the industrialized world—be subject to a non-legally binding regime alone. The rest of the industrialized countries will, presumably, be subject to the Kyoto Protocol's second commitment period, as well as its compliance system. While differential treatment between industrialized and developing countries is a foundational pillar of the climate regime, differentiation between the US and the rest of the industrialized countries, in particular in the legal character of the commitments, may prove difficult to justify or sustain. This therefore will likely lead to two consequences. First, Kyoto Annex B Parties, who will not wish to be subject to commitments different in character, form and stringency from the US, will likely abandon the Kyoto Protocol, a legally binding instrument with a strong compliance system, to join the US in this new aspirational regime. Secondly, Kyoto Annex B Parties that have defaulted on their Kyoto commitments will, by killing Kyoto, effectively avoid accountability under Kyoto's compliance system.
Further, as COP decisions cannot give rise to substantive new obligations, there can be no new obligations with respect to aspects of the regime that do not touch on mitigation targets. For example, COP decisions will not permit the creation of new obligations with respect to provision by industrialized countries of the necessary ‘means of implementation’ for developing countries to meet their mitigation goals or adaptation needs, or to the extension of the compliance system to take into account support/enablement obligations of industrialized countries. Even if new structures and frameworks are permissible on the fiction that they merely flesh out the FCCC, these, and any quantitative commitments Parties make within these frameworks, will not lend themselves to enforcement.
VII. A MINISTERIAL DECLARATION
Yet another legal form option for the Copenhagen agreed outcome is a Ministerial Declaration. Notwithstanding any suggestion of gravitas a Ministerial Declaration signals, such an outcome will represent the least ambitious of the spectrum of possible outcomes of COP-15. A Ministerial Declaration may represent the collective will of the parties gathered and if so it can be adopted as a COP decision. The Delhi Ministerial Declaration 2002 is an example.Footnote 127 If such a declaration is adopted at Copenhagen then it will likely contain the key elements of the political bargain arrived at, and it will extend the process for a further period of time so as to flesh out the details of the bargain.
A Ministerial Declaration may in the alternative also represent the collective will of a sub-set of the Parties to the FCCC, in which case it cannot be adopted as a COP decision, COP decisions requiring consensus. Such a Ministerial Declaration will be easier to secure, but it is a weak outcome as it cannot direct Parties, the Secretariat, the subsidiary bodies and its officers. An example of such a declaration is the Geneva Ministerial Declaration.Footnote 128 The Declaration instructs the signatories' representatives to engage in particular conduct.Footnote 129
VIII. EVALUATING LEGAL FORM OPTIONS: STRATEGIC AND POLITICAL CONSIDERATIONS
It is axiomatic that form should follow function, and that the treatment of the legal form question should be guided by the substantive outcomes that emerge from the negotiations. However some form options, for reasons discussed before, will not be in keeping with a fair, effective and ambitious post-2012 climate agreement—the use exclusively of COP decisions and/or a Ministerial Declaration fall in this category. If the Copenhagen Agreed Outcome is to be a legally binding instrument, the choice between an instrument that supplements the Kyoto Protocol and one that replaces it will be governed by various strategic and political considerations.
The considerations which argue in favour of a new legal instrument to supplement the Kyoto Protocol are numerous. First, the FCCC is an umbrella convention, and a whole host of protocols can be adopted under it. As long as the fields of operation are kept distinct, the new legal instrument could strengthen the current regime. Second, there is a trust deficit in the climate regime, and efforts to kill Kyoto, however softly, will deepen the mistrust. The Kyoto Protocol contains a unique burden-sharing arrangement, as well as an acknowledgment of industrial country leadership. If Kyoto Parties do not abide by the legal mandate of Kyoto Article 3(9), requiring Annex B Parties to negotiate targets for the second commitment period, developing countries may not have the confidence that industrial countries will honour the next instrument they negotiate. The increase in GHG emissions in some industrial countries does not also instil confidence. Third, if Kyoto is abandoned, all decisions under the Protocol lapse. If these are to be re-negotiated or if any space is created for adopting some but not other CMP decisions (or any selection of parts of the Kyoto Protocol), then there is a risk that provisions on compliance, accounting and land use, land use change and forestry, among others, will be re-opened and diluted. In this context, a transitional arrangement that is focused on addressing the trust deficit in the system has much to recommend itself.
The considerations which argue in favour of replacing Kyoto are two-fold. First, the US will not ratify the Kyoto Protocol, even in an amended form, and most industrialized countries would prefer to be in the same legal basket as the US. They would not, for instance, wish to undertake legally binding commitments under the Kyoto Protocol's second commitment period if the US is subject to non-legally-binding aspiration commitments under a COP decision. Second, the current multi-track process is burdensome and unwieldy, and a single new instrument incorporating key elements of the Kyoto Protocol would ensure greater policy coherence and institutional coordination in the climate regime. There may be ways of addressing, even if only partially, the trust deficit in the regime in this option as well; as for instance if industrialized countries subjected themselves to the accounting and compliance procedures of the Kyoto Protocol, and thereby allowed the Kyoto cycle to come to a natural end.Footnote 130
A. How Do You Deal with a Problem Like the US?
A strategic and political consideration that applies across the board to all legal form options is the one that has plagued the climate negotiations for several years: how do you deal with a problem like the US? The US is an active participant in negotiations, but a reluctant participant in treaties. The US has its fingerprints over the Kyoto Protocol, which it subsequently rejected. And it is the US rejection of the Kyoto Protocol that led to the two-track climate regime. The US is engaging more constructively under the new Obama administration, but it may still not be able to garner sufficient domestic support to enable it to take appropriately ambitious commitments at the international level. In this context, Parties will need to determine the extent to which they will allow the US to shape an agreement that it may well not be able to ratify. Parties will also need to consider whether they will be willing to accept a unilateral declaration from the US in lieu of participation in the Copenhagen agreed outcome. Should the political will exist, absent legislative support, the US may choose the device of a unilateral declaration.
Unilateral declarations can create legal obligations. But in order to do so the intention of the State making the declaration must be clear. The form in which the intent is expressed is irrelevant.Footnote 131 The ICJ in the Nuclear Tests Case noted that ‘declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations.’ However, it is the intention of the State making the declaration that is determinative. If the State making the declaration intended that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking. The Nuclear Tests Case emphasized that ‘[a]n undertaking of this kind, if given publicly, and with a intent to be bound, even though not made in the context of international negotiations is binding.’Footnote 132 The attribution of intention to a State's unilateral statements, however, ‘should be subject to strict conditions’ and ‘the fulfillment of the most stringent criteria.’Footnote 133
Should the US choose to commit itself to a particular target through a unilateral declaration it would create room for exceptionalism which is objectionable in principle, but it is also problematic in practice because it may start a trend. Such a unilateral declaration may nevertheless function as a sufficient guarantee for Annex B Parties that they will have the same legal character of commitments as the US, and that they will, like the US, be subject to GHG controls.
Should such a unilateral declaration satisfy developing countries? And, if not, how should they condition their response to such an act by the US? Much will depend on the nature, content and language of the declaration. The US is likely to commit itself internationally only to that which is contained in its domestic legislation. The Waxman Markey Bill's targets both on financing for developing countries as well as on GHG mitigation are modest.Footnote 134 The US may therefore commit itself irrespective of whether developing countries take on binding obligations or not. However, any financing or technological assistance it will provide will not be tied to equitable FCCC criterion. In these circumstances, developing countries may be justifiably reluctant to enter into another legally binding agreement under the FCCC. There are at least two reasons for this. First, assuming Kyoto continues, the only countries with obligations to take mitigation actions under this new agreement will be developing countries. Secondly, the support provisions without the US may be of limited significance.
IX. ADDRESSING THE POST-KYOTO STRESS DISORDER THROUGH CHOICE OF LEGAL FORM
Given the current state of the negotiations, and the range of legal form options that countries are exploring, a compromise route for COP-15 to adopt may be a transitional option that builds on the strengths of the Kyoto Protocol, provides a lead-in time for more ambitious engagement from key players, and eventually draws Parties towards a coherent and ambitious climate regime that lends.
This route envisages two tracks and two legally binding instruments under the umbrella of the FCCCFootnote 135—the Kyoto and Copenhagen Protocols—for the next one or two commitment periods, eventually leading in 2020 to a single unified track. In the transitional period, there would be negotiated targets for all Annex B Parties for Kyoto's second commitment period, and a new legal instrument, the Copenhagen Protocol, to address elements of the Bali Action Plan.
The Copenhagen Protocol would require mitigation targets from all industrialized countries (Quantified Reduction Commitments) and mitigation actions from developing countries. The mitigation actions that developing countries take could be captured in a register of nationally appropriate mitigation actions. In addition, there would be provisions on measurement, reporting and verification for developing country mitigation actions, and provisions on measurement, reporting and verification (MRV) of the means provided to implement these actions.
The targets that Kyoto developed countries agree to for the second commitment period could be incorporated verbatim in the Copenhagen Protocol at the time when the agreement is adopted (such that these targets would form an integral part of both Kyoto and the Copenhagen Protocols). The Copenhagen Protocol, however, will ensure that the US, a non-Kyoto industrialized country, and its target, is covered by the regime. The US target would be of the same legal character as that of other industrialized countries, but would be different in stringency to the one inscribed in Kyoto for the US. The new agreement would contain benchmarks for comparability across the targets adopted by industrialized countries so as to ensure symmetry in the character, rigour and effectiveness of both tracks moving forward.
The Copenhagen Protocol would also include: measurement, reporting and verification for industrialized country commitments, building on existing Kyoto architecture, incorporating compliance and, mutatis mutandis, the Marrakech Accords;Footnote 136 credible, visible and substantial means of implementation (access to technology, finance, capacity, and market-based instruments) for mitigation and adaptation, in a measurable, reportable and verifiable manner; a separate chapter on adaptation, consolidating existing work and adding provisions on funding and implementation; and a chapter creating appropriate incentives for reducing emissions from deforestation in developing countries (REDD+). And, finally, the Copenhagen Protocol would incorporate an agreement that there would be a review in 2016 of mitigation commitments by developed countries and mitigation actions by developing countries, with an understanding that this could lead to strengthening the ambition of the regime, as well as merging the two tracks.
As an aside, this transitional proposal is premised on the idea that the Copenhagen Protocol will contain Kyoto-style targets for non-Kyoto industrialized countries. This is essential to ensure that there is some measure of comparability across industrialized countries. In conjunction with such targets for non-Kyoto industrialized countries, this option contains a bottom-up approach to developing country actions. This is in keeping with the burden-sharing arrangement in the FCCC—which clearly distinguishes between developed and developing country obligations—and remains respectful of the Bali firewall. This arrangement makes a significant demand on developing countries as they will transition from qualitative to quantitative mitigation obligations that will be measured, reported and verified, and framed in a legally binding agreement. This will, nevertheless, be resisted by those industrialized countries, such as the US, Australia and others that are in favour of a bottom-up approach for all countries, one that implicitly transcends the Bali firewall.
Two instruments in a transitional phase, albeit inelegant, would have several advantages. It would provide those industrialized countries Annex B Parties that are not already doing so with a chance to reduce GHG emissions and make progress within the context of an agreement, Kyoto, that was premised on industrialized country leadership. It would provide non-Kyoto industrialized countries an opportunity to make up for lost time by engaging in aggressive emissions reductions, and would provide all industrialized countries a chance to pull together means of implementation commensurate with the scale of the problem and the scale of the responses required of developing countries. As India's Ambassador Dasgupta noted in an intervention at AWG-LCA-5 in Bonn in April 2009, statements that industrialized countries make on the ambition required of developing countries' mitigation actions, are in effect statements on the ambition required of industrialized countries in terms of providing the appropriate means of implementation for these actions.
Two instruments in a transitional phase would also provide the US, among other industrialized countries, time to assess domestic buy-in, the costs and benefits of different policies and measures, and to make an ambitious yet realistic international commitment. This would, in part, catalyze more proactive proposals from developing countries. It would give developing countries the comfort that their participation will be dealt with, at least at this juncture, in the context of a distinct legal instrument, which in itself is an acknowledgment of differential treatment. It would demonstrate that, where relevant, industrialized countries are willing to account for their non-compliance with Kyoto targets. It would also provide developing countries with a chance to assess domestic buy-in, and reflect on the costs and benefits of different policies and measures, the credibility, quantity and predictability of international enablement, and to arrive at an ambitious yet realistic international commitment. An ambitious target from the US in 2016 or 2020, as it is demonstrably complying with its less ambitious (given Kyoto benchmarks, rather than US politics) yet tangible commitment under the new agreement,Footnote 137 will augur confidence, and likely catalyze more responsive policies and commitments from developing countries, both nationally and internationally. Developing countries would also have by then a better sense of cost and opportunity implications, having seen the new agreement and the enablement provisions in operation.
