I. INTRODUCTION
The Cancun Agreements, hailed by Patricia Espinosa, Mexican Secretary of Foreign Affairs and President of the Cancun Conference, as launching ‘a new era of international cooperation on climate change,’Footnote 1 were concluded on 11 December 2010 to widespread acclaim. These agreements that will guide the climate negotiations for the foreseeable future represent another twist in the tale of the ongoing negotiations.
The climate regime comprises the Framework Convention on Climate Change (FCCC), 1992,Footnote 2 and the Kyoto Protocol, 1997.Footnote 3 The Parties to the Kyoto Protocol at their first Meeting in Montreal, 2005, launched the Ad Hoc Working Group on the Kyoto Protocol (AWG-KP), for considering, as required by the Protocol,Footnote 4 commitments for Parties listed in Annex B to the Protocol beyond the end of the first commitment period in 2012.Footnote 5 The Parties to the FCCC at their thirteenth Conference of Parties in Bali, 2007, launched the Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA) for long-term cooperative action under the FCCC.Footnote 6 These processes, launched in 2005 and 2007 respectively, are yet to conclude. The AWG-LCA negotiations were scheduled to arrive at an ‘agreed outcome’Footnote 7 at the 15th Conference of Parties (COP-15) in Copenhagen, 2009, however this was not to be. COP-15 resulted in decisions to continue negotiations under the FCCC and Kyoto Protocol, as well as the controversial Copenhagen AccordFootnote 8 reached among a subset of the Parties, at the Heads of State level, to these instruments. The Copenhagen Accord, rejected by the Bolivarian Alliance,Footnote 9 Sudan and Tuvalu, has no ‘formal legal standing’Footnote 10 in the FCCC process. However, 141 States have associated with it, and many have inscribed their mitigation targets and actions in its appendices.Footnote 11 The Cancun Agreements, arrived at by States at the 16th conference of Parties (COP-16) integrate many of the elements of the Copenhagen Accord into the FCCC process, and for this many consider it a success.Footnote 12 In addition to taking note of the mitigation targets and actions communicated by States, and providing for transparency in their implementation, the Agreements establish an Adaptation Framework, a Technology Mechanism, and a Green Climate Fund. The Agreements also create a framework for addressing deforestation in developing countries.
The real treasures, however, are to be mined in the text of the Agreements relating to mitigation actions and commitments. This is therefore the chosen focus of this article. This article examines the text relating to mitigation, and explores the subtext, with a view to reading the tealeaves on the post-2012 climate regime. There is much to be read in and between the lines of the Cancun Agreements, in particular if read in conjunction with the Bali Action Plan, 2007, and the Copenhagen Accord, 2009. This article argues that although few, if any, of the disagreements that led to the collapse of COP-15—including on the future (or lack thereof) of the Kyoto Protocol, the nature and extent of differential treatment between developed and developing States, and the architecture of the future legal regime have been authoritatively resolved, the Cancun Agreements clearly indicate the path the post-2012 climate regime is likely to take.
II. TEXT AND SUBTEXT
The Cancun Agreements consist of a decision under the FCCC on the outcome of the work of the AWG-LCA,Footnote 13 and a decision under the Kyoto Protocol on the outcome of the work of the AWG-KP.Footnote 14 The LCA Outcome Decision is a 30-page document, covering the pillars of the Bali Action Plan, 2007—shared vision, mitigation, adaptation, finance and technology. The Kyoto Outcome Decision is a two-page document covering mitigation for Annex I Parties.
A. Shared Vision for Long-term Co-operative Action
The LCA Outcome Decision recognizes that ‘deep cuts in global greenhouse gas emissions are required’ … to ‘hold the increase in global average temperature below 2°C above pre-industrial levels.’Footnote 15 This goal first arrived at by the G-8 in L'Aquila, 2009,Footnote 16 and later agreed in the Copenhagen Accord, 2009, has now been incorporated in the FCCC process. The ‘deep cuts’ required to meet the 2°C goal and the associated time frame for achieving this goal, however, are yet to be determined. Parties agreed to ‘work towards’ identifying a global goal for emission reductions and a time frame for peaking of emissions, and to ‘consider’ these at COP-17 in Durban in 2011.Footnote 17 The commitment is to ‘work towards identifying’ a goal and a peaking year, rather than to identify these, and to ‘consider,’ not finalize, them at Durban. There are deep rifts on these issues. Developing countries, in particular Brazil, South Africa, India and China (BASIC) are reluctant to accept global goals for emissions reductions in the absence of an equitable burden-sharing arrangement. In their view, without such an arrangement, these goals will translate into effective limits on their development.Footnote 18 Hence their insistence on references in this context to ‘social and economic development and poverty eradication’ as the ‘first and overriding priorities of developing countries,’Footnote 19 and ‘equitable access to sustainable development.’Footnote 20 The insertion of language from the FCCC that recognizes development as an overriding priority is significant. In theory, should there be a conflict between the achievement of the global goal and development, the latter would take precedence. The term ‘equitable access to sustainable development’ was coined anew by BASIC, and is intended to stake a claim to the requisite carbon space to develop and eradicate poverty.Footnote 21 The use of this term does reflect a subtle shift, however, from China and India's earlier insistence on equitable access to the atmospheric space, and to per capita entitlements.Footnote 22 In this new formulation, the sharing of the atmospheric space is not determined by rights-based entitlements but by needs-based sustainable development.
The 2°C goal, at the insistence of the small island States, is subject to a process of review that is required to ‘consider’ strengthening the goal in relation to a 1.5°C goal.Footnote 23 The review is set to start in 2013 and conclude by 2015. The review will coincide with the release of the Intergovernmental Panel on Climate Change's Fifth Assessment Report in 2014. At this juncture, since the mitigation proposals submitted under the Copenhagen Accord are certain, even if implemented, to lead to a higher than 2°C temperature rise,Footnote 24 the theoretical possibility of strengthening the goal, may well be hot comfort.
B. Mitigation Commitments or Actions
The Cancun Agreements, in particular in the paragraphs relating to mitigation, deploy artful drafting in the face of seemingly irreconcilable differences. In the lead-up to and at COP-16, many developed countries had argued for ways to ‘capture’ or ‘anchor’Footnote 25 in the FCCC process, the mitigation proposals submitted under the Copenhagen Accord. Neither the Accord, given its tortured birthing process, nor the targets and actions inscribed in its Appendices, has formal legal standing in the FCCC process.Footnote 26 The LCA Outcome Decision captures these targets and actions in separate paragraphs for developed and developing countries but with near-identical framing. The texts ‘take[s] note of’ Annex I ‘emission reduction targets,’ and non-Annex I ‘mitigation actions’, ‘to be implemented’ ‘as communicated by them’ and contained in information documents ‘(to be issued)’.Footnote 27 The texts are accompanied by identical footnotes, noting that ‘Parties’ communications to the Secretariat that are included in the INF document are considered communications under the Convention.'Footnote 28 The Kyoto Outcome Decision ‘takes note of quantified emission reduction targets to be implemented by Annex I Parties as communicated by them and contained in document FCCC/SB/2011/INF.1.’Footnote 29
1. Taking note
Taking note of documents has come to acquire particular significance in the FCCC process.Footnote 30 COP-15, failing agreement, merely took note of the Copenhagen Accord. The LCA and Kyoto Outcome Decisions ‘take[s] note of’ mitigation targets or actions contained in designated information documents. Taking note signals an acknowledgment that these targets or actions exist, but is not an endorsement of them. This acknowledgment, however, is ironic, despite the fact that these targets and actions were in existence they had not been compiled into information documents at the time. Although some attach considerable political significance to the referencing of mitigation actions, in particular from developing countries, in the FCCC process, the legal significance, if any, of taking note of targets or actions in nonexistent documents, is negligible.
2. Framing and tone across the developed–developing country divide
The use of near-identical framing language, or ‘parallelism,’ in the text relating to developing countries and developed countries is the culmination of efforts launched in the Bali Action Plan by the United States, among other developed countries, to ensure that the ‘look and feel’ of obligations across developed and developing countries (at least the ‘major emitters and emerging economies’), even if not its stringency, is similar.Footnote 31 To the United States, there is ‘no rationale for legal asymmetry, in the Convention or otherwise.’Footnote 32 The impetus for this position is evident in United States' domestic politics. Among other examples, there is a Bill currently under consideration to prohibit climate change action in the United States until ‘substantially similar’ regulations are imposed on China, India and Russia.Footnote 33
The gradual shift towards parallelism is accompanied by a shift towards a less prescriptive and more predictive tone in relation to mitigation. In the Copenhagen Accord, the language used to frame commitments and actions is prescriptive for developed countries (‘Annex I Parties commit to implement’)Footnote 34 and predictive for developing countries (‘Non-Annex I Parties will implement’).Footnote 35 In the Cancun Agreements, the language used is predictive for both (‘to be implemented’).Footnote 36
There are, however, differences between the texts for developed and developing countries. First, mitigation in relation to developed countries is characterized as ‘quantified economy-wide emission reduction targets’ and in relation to developing countries as ‘mitigation actions.’ Second, ‘targets’ of developed countries and ‘actions’ of developing countries will be lodged in distinct information documents.Footnote 37
3. Mitigation commitments or actions by developed countries
Mitigation in relation to developed countries has evolved in two respects in the climate regime. First, obligations appear to have given way to aspirations. Second, mitigation has come to be understood as absolute reductions alone. To elaborate, the Kyoto Protocol 1997, characterizes the mitigation obligations of developed countries as ‘quantified emission limitation and reduction commitments’,Footnote 38 the Bali Action Plan, 2007, characterizes them as ‘commitments or actions,’ (with ambiguous language on whether or not these need to encompass ‘quantified emission limitation and reduction objectives’), and the Copenhagen Accord characterizes them as ‘emissions targets’ (with no reference to reduction and/or limitation). The LCA Outcome Decision re-introduced the word ‘reduction’, but omitted the term ‘limitation’.
This reflects an understanding that for developed countries limitation of GHGs, which could be interpreted as limitations on the growth of GHGsFootnote 39 or as stabilization commitments,Footnote 40 are no longer appropriate, and mitigation targets need to be expressed in terms of absolute reductions. Further, the language of commitments, arguably signifying an obligatory undertaking, has given way to the aspirational language of targets.
In addition to these two shifts, the Cancun Agreements are remarkable for their use of an innovative bridging device between the Kyoto Protocol and FCCC tracks. The creation of a bridging device proved necessary to secure the agreement of Japan and Russia, who have publicly signaled their rejection of a second commitment period under the Kyoto Protocol.Footnote 41 The document number—FCCC/SB/2011/INF.1—listed in the Kyoto Outcome Decision in relation to mitigation targets for developed countries is identical to that in the LCA Outcome Decision.Footnote 42 Many developed countries are keen to be in the same legal basket as the United States. The Cancun Agreements contrived to achieve this through the creation of an information document containing mitigation proposals from all developed countries that will be considered by the subsidiary bodies. There is deliberate ambiguity as to whether this information document relates to the FCCC or to the Kyoto Protocol. Subsidiary bodies under the FCCC serve as the subsidiary bodies under the Protocol, and sessions of these bodies under the FCCC and Kyoto Protocol are held in conjunction with each other.Footnote 43 The subsidiary bodies can consider information relating both to the FCCC and the Protocol. However, only Parties to the Protocol may take decisions under it. Non-Parties such as the United States can only participate as observers.Footnote 44 Parties may take decisions in relation to such a document, under the Protocol, however, the extent to which these decisions will apply to non-Parties without their consent is limited.Footnote 45
This bridging device permits countries to seamlessly migrate from the Kyoto Protocol track to the FCCC track over time. There are perceived advantages to such migration. Although the LCA and Kyoto Outcome Decisions contain identical language taking note of targets, the Kyoto Decision contains an agreement that further work is needed to convert targets to ‘quantified economy-wide limitation or reduction commitments.’Footnote 46 This requirement is in keeping with the architecture of the Kyoto Protocol and the mandate of the AWG-KP process. The LCA Outcome Decision urges developed countries to increase the ambition of their targets,Footnote 47 but contains neither an agreement to nor a process for converting targets into commitments.
The Kyoto Outcome Decision's paragraph taking note of targets is accompanied by a footnote that states that ‘the content of the table in the information document is shown without prejudice to the position of the Parties or to the right of Parties under article 21, paragraph 7, of the Kyoto Protocol.’Footnote 48 This footnote is intended to address concerns raised by Japan and Russia. Although COP decisions cannot modify treaty obligations, Protocol article 21(7), which identifies a specific procedural requirement, written consent from the Party concerned, for amending Annexes, offers further comfort to these countries.Footnote 49
4. Mitigation actions by developing countries
Mitigation in relation to developing countries has also evolved through the years. There is an increasing quantification or concretization of mitigation actions required from developing countries, and a gradual shift in emphasis from supported to unsupported mitigation actions.
The FCCC imposes qualitative commitments in relation to mitigation policies and measures on developing countries.Footnote 50 The Berlin Mandate that launched the process that led to the Kyoto Protocol expressly forbade imposition of new commitments on non-Annex I countries.Footnote 51 The Kyoto Protocol, accordingly, contained none. The Bali Action Plan suggested the adoption of ‘nationally appropriate mitigation actions’ (NAMAs) for developing countries, but tied this is to the provision of measurable, reportable and verifiable (MRV) technology, finance and capacity-building.Footnote 52 There have been at least two distinct developments since Bali. First, although the Copenhagen Accord required developing countries to submit and implement mitigation actions it did not prescribe a cumulative quantitative mitigation goal.Footnote 53 The Cancun Agreements take a tentative step in this direction by requiring developing countries to aim at achieving a ‘deviation in emissions relative to business as usual’ in 2020.Footnote 54 Second, the Copenhagen Accord disturbed the direct link between MRV of financing and MRV of mitigation actions by placing these in separate paragraphs, and contriving to nullify interpretations that make the former a precondition to the latter.Footnote 55 This trend—to delink support from actions—has been taken forward in the Cancun Agreements.Footnote 56
There are several references to mitigation actions in the LCA Outcome Decision: actions ‘as communicated by’ non-Annex I PartiesFootnote 57 (i.e. mitigation proposals submitted under the Copenhagen Accord); additional actions that developing countries may take under the LCA Outcome Decision;Footnote 58 and, actions seeking international support.Footnote 59 The text of the COP Decision envisages several repositories for information provided by Parties on NAMAs. First, an information document that will contain actions ‘as communicated by’ non-Annex I Parties. Second, a ‘registry,’ entrusted with the function of helping match actions to support, that will record actions seeking support as well as the provision of support.Footnote 60 Third, a separate section of the registry, to be regularly updated by the Secretariat, that will contain, inter alia, information provided by Parties relating to actions that have been matched with support and actions proposed under the Copenhagen Accord (albeit without explicit reference to it).Footnote 61 These repositories of information are designed to perform distinct functions. The information document is intended to capture in the FCCC process mitigation proposals submitted in relation to the Copenhagen Accord. The registry is intended to help match proposed actions to support. The separate section of the registry is intended to provide an updated picture of all the actions expected from a particular State, and to recognize the totality of actions a State is taking. This could include actions supported through the registry, actions supported domestically and actions supported through other sources.
Interestingly, first, developing countries can provide information in relation to their mitigation proposals, which the Secretariat will use to update the registry.Footnote 62 There is no such provision in relation to the targets of developed countries.Footnote 63 Second, these updates will be collated in an AWG-LCA information document, which has a limited life span. The AWG-LCA's mandate currently extends until COP-17, 2011.Footnote 64 Its life span is determined a year at a time. When the term of the AWG-LCA comes to an end, this information document will likely become an historical artifact. The COP or subsidiary bodies may offer a more appropriate institutional home. Third, the separate section of the registry permits an interpretation that internationally supported actions are in addition to the mitigation proposals of states. For example, South Africa's mitigation proposal is a deviation from business as usual emissions growth of 34 per cent by 2020 and 42 per cent by 2025.Footnote 65 This information will form a part of the separate section of the registry. If South Africa identifies actions requiring support in the registry, and these are matched with support, will the resulting supported action be in addition to that which South Africa would do to meet its goal, or will this supported action be an integral part of South Africa's effort to meet this goal? In other words, will international support ratchet up the ambition or help deliver the ambition? The conditions attached to most mitigation proposals made by developing countries in the context of the Copenhagen Accord explicitly condition mitigation action to the provision of support. Such conditional mitigation proposals sit uneasily with the text of the LCA Outcome Decision. This issue is yet to be resolved. It is clear however that there is an ever-expanding role for unsupported actions required of developing countries.
5. Populating the information documents
Information documents have limited status in the FCCC process. Information documents are prepared merely to enlighten Parties, they are not actionable. Information documents can be revised and reissued. An example of an information document often seen at the climate negotiations is the list of participants.Footnote 66 It is perhaps because information documents have such carefully circumscribed status that developed countries have begun to use information documents to reflect their pledges in the AWG-KP process.Footnote 67
The operational assumption is that the information documents referred to in the Cancun Agreements will be populated with the mitigation proposals that countries have put forth. There are several mitigation proposals on the table, including those submitted under the AWG-KP process, to the FCCC, and in relation to the Copenhagen Accord. The proposals submitted by Annex B Parties in the context of the AWG-KP process have been considered there.Footnote 68 After Copenhagen, some non-Annex I Parties submitted mitigation proposals to the FCCC rather than to the Accord (signifying thereby a distancing from the Accord and endorsement of the FCCC).Footnote 69 The FCCC Secretariat interpreted these as information provided by Parties in relation to Appendix II of the Copenhagen Accord, and the actions were listed accordingly. Other Parties submitted proposals explicitly in relation to the Copenhagen Accord. These proposals have, like the Accord, no legal standing in the FCCC process. Indeed, the FCCC Secretariat, was, arguably, working outside its mandate in compiling these.Footnote 70 It was to address this uncertain legal situation, as well as to avoid requiring re-submission (which might result in a downward revision of proposals), that the footnotes referred to above were added. These footnotes translate ‘communications to the secretariat’ into ‘communications under the Convention,’ effectively converting, without referring to the Copenhagen Accord, proposals inscribed in its appendices, into proposals submitted under the FCCC process. The proposals submitted in the context of the AWG-KP process, given the evident intent to merge, will also be incorporated in the information document containing targets of developed countries. The Secretariat gave States an opportunity informally, to confirm their proposals before incorporating them into the information document.
Proposals and inscriptions, wherever submitted, are, without exception, heavily qualified and conditioned on actions by others.Footnote 71 Many developing countries, including all the BASIC countries, refer in the letters transmitting their mitigation proposals to FCCC article 4(7) which links the fulfillment of developing country commitments to the provision of support by developed countries.Footnote 72 Developed, and some developing,Footnote 73 countries have also made their targets conditional on the achievement of a ‘global’ and ‘comprehensive’Footnote 74 agreement, ‘legally binding obligations’ by ‘all major emitters,’Footnote 75 or on the passage of domestic legislation in their ownFootnote 76 or another country.Footnote 77 The deliberate use of the phrase ‘as communicated by them’ in the Cancun Agreements is intended to capture not just the proposals but also the full breadth of conditions and qualifications attached to these proposals. These proposals, even if faithfully implemented at the higher end of the spectrum of ambition States have identified, will not hold temperature increase to 2°C.Footnote 78
In effect, at Cancun Parties took note of documents that did not exist, and when they do, are likely to contain targets and actions that will not hold temperature increase to the stated aim of 2°C. The Cancun Agreements recognize the inadequacy of mitigation targets proposed by developed countries. Both the LCA and Kyoto Outcome Decisions urge developed countries to increase the ambition of their targets. However, the LCA Outcome Decision urges them to do so with a view to reducing their GHGs to a ‘level consistent with,’Footnote 79 and the Kyoto Outcome Decision ‘in accordance with the range indicated by’ the Fourth Assessment Report of the IPCC.Footnote 80 In the Kyoto Outcome Decision this ‘range’ is recognized, in introductory text, as ‘25–40% below 1990 levels by 2020.’Footnote 81 There is no such quantification in the LCA Outcome Decision.
C. Measurement Reporting and Verification
The LCA Outcome Decision text on measurement, reporting and verification (MRV) complements the text on mitigation targets and action. Across the developed–developing country divide, there is a leveling of the frequency, rigor, and review of national communications from Parties.
1. MRV for developed countries
The LCA Outcome Decision requires developed countries to submit annual greenhouse gas (GHG) inventories, and biennial reports on their progress both in achieving emission reductions and in providing financial, technology and capacity-building support to developing countries.Footnote 82 The decision also resolves to enhance guidelines for reporting and review of information in national communications, and establishes a work program to do so.Footnote 83 In addition, the decision attempts to address concerns relating to accountability for submitted targets and comparability across targets. To do this, the decision imports elements from the Kyoto Protocol on methodological issues, communication and review of informationFootnote 84 into the FCCC process. This is evident, for instance, in the paragraph establishing ‘national arrangements’ for the estimation of anthropogenic emissions by sources and removals by sinks of all GHGs not controlled by the Montreal Protocol.Footnote 85 Protocol Parties already have such a system in place. This provision extends Protocol article 5 ‘national system’ requirements, to non-Protocol developed country Parties. It does so in near-identical language, save for the rechristening of ‘national systems’ to ‘national arrangements.’Footnote 86
The LCA Outcome Decision establishes a process for ‘international assessment’ of emissions and removals related to targets in the Subsidiary Body for Implementation ‘with a view to promoting comparability and building confidence.’Footnote 87 The notion of comparability across developed country commitments or actions first referenced in the Bali Action Plan was lost in the Copenhagen Accord, 2009, but has been rehabilitated in the Cancun Agreements. This rehabilitation comes at a cost, however. The Bali Action Plan sought to ‘ensur[e] comparability of efforts’,Footnote 88 and the Cancun Agreements seek to ‘promot[e] comparability’ of targets.Footnote 89 A further weakening is evident in that the Copenhagen Accord required delivery of reductions and financing by developed countries to be accounted for, through MRV, in a ‘rigorous, robust and transparent’ manner. The LCA Outcome Decision uses the term ‘rigorous, robust and transparent,’ but it's unclear whether this term qualifies the establishment of the process of international assessment, or the accounting for national circumstances.Footnote 90 In any case the details of this ‘international assessment’ process are yet to be worked out. The text, as drafted, defines little. Even the characterization of this process differs in different paragraphs of the text—in a subsequent paragraph this process is characterized as ‘international assessment and review.’Footnote 91 It is unclear what this assessment and review relates to the targets, the data relating to the targets or compliance with the targets? Further, the international assessment and review process, as currently drafted, does not lead to an output.
2. MRV for developing countries
The LCA Outcome Decision enhances the frequency and rigour of national reporting and inventory requirements for developing countries, with a rider that the content and frequency of national communications from non-Annex I Parties will not be more onerous than that for Annex I Parties.Footnote 92 The decision requires national communications every four years as well as biennial update reports from non-Annex I Parties.Footnote 93 Thus far, non-Annex I Parties have been required to submit their national communications every four to five years,Footnote 94 and Annex I Parties every four years.Footnote 95 In practice given the wide discretion offered to non-Annex I Parties, submissions have been far less frequent than required.Footnote 96 This decision renders national communication requirements symmetrical across developed and developing countries. While requirements placed on developing countries are not more onerous, they are not less onerous either.
The LCA Outcome Decision also recognizes a clear distinction between supported and unsupported mitigation actions—domestically supported actions will be subject to domestic MRV, internationally supported actions will be subject to domestic and international MRV.Footnote 97 Further, the decision establishes an international consultation and analysis (ICA) process for biennial update reports from developing countries.Footnote 98 The origins of the ICA process are in the Copenhagen Accord, 2009.Footnote 99 The ICA process has since been fleshed out, and provided with a counterpart, international assessment and review, for developed countries. The decision requires the ICA process to be conducted in a manner that is ‘non-intrusive, non-punitive and respectful of national sovereignty.’Footnote 100 It confines the review of information to the non-threatening realm of technical experts, and excludes a discussion on the ‘appropriateness’ of domestic policies and measures.Footnote 101 Unlike the international assessment and review process for developed countries, however, the ICA process results in a ‘summary report.’Footnote 102 The rationale for such asymmetry between developed and developing countries is not readily evident—why is a summary report deemed necessary in relation to developing country mitigation but not in relation to developed country mitigation?Footnote 103 It is also unclear what use this summary report can be put to. Is it merely for information or can it generate a pressure to ratchet up the ambition of the action? Further, although the ‘appropriateness’ of domestic policies and measures is not part of the analysis, can questions relating to the extent or adequacy of actions be raised?
3. A New locus of action: the subsidiary body for implementation
The MRV provisions of the Cancun Agreements dramatically increase not just the informational demands of States, but also the workload of the Subsidiary Body for Implementation (SBI). The SBI will likely consider the information document containing developed country targets.Footnote 104 It has also been charged with conducting the process of international assessment and review for developed countries, and ICA for developing countries.Footnote 105 It will also consider annual GHG inventories and biennial progress reports from developed countries, and more frequent national communications and biennial updates, including of inventories, from developing countries.Footnote 106 The Cancun Agreements provide some guidance on the nature of the ‘consideration’ that this information will be subject to, but leave the uses to which that the information may be put unclear. It is worth recalling the mandate of the SBI. According to the FCCC, the consideration of the information provided differs based on the source of information. Information provided by all Parties can be used to ‘assess the overall aggregated effect of the steps taken by the Parties.’Footnote 107 Information provided by developed countries can be used to assist the COP in carrying out a review of adequacy of developed country commitments. The COP is authorized to take ‘appropriate action’ on the basis of such reviews. This may include the initiation of processes to adopt more stringent commitments for developed countries.Footnote 108
III. READING THE TEA LEAVES
Like the Copenhagen Accord before them, the Cancun Agreements did not settle any of the fundamental cleavages that currently exist: the fate of the Kyoto Protocol, the legal form and architecture of the future legal regime, and the nature and extent of differential treatment between developed and developing States.Footnote 109 However, they offer a vivid glimpse into the future.
A. The Future of the Kyoto Protocol
The LCA Outcome Decision, save for a solitary reference to the Kyoto Protocol in the context of market mechanisms,Footnote 110 does not link to the Kyoto Protocol. The Kyoto Outcome Decision records agreement that that AWG-KP will continue its work with a view to having its results adopted ‘as early as possible and in time to ensure that there is no gap between the first and second commitment periods.’Footnote 111 This text borrows language from the decision that launched the AWG-KP.Footnote 112 It does not identify a deadline for the completion of the AWG-KP's work, merely requiring that a gap be avoided. At this juncture, a gap between commitment periods is unavoidable. For a gap to be avoided, amendments to Annex B would need to enter into force by 1 January 2013, which in turn would require three-quarters of Kyoto Parties to have deposited instruments of ratification 90 days before this date.Footnote 113 States can only adopt amendments in Durban, CMP-7, December 2011, but for this the proposed amendments would have to be communicated to Parties six months before the meeting.Footnote 114 This requires Parties to request the Secretariat to communicate their proposed amendments by June 2011.Footnote 115 It is safe to assume that a process launched in 2005 that has yet to collectively present amendments for adoption, given the lack of political will, is unlikely to deliver in the next few months. Most of the proposals for amendments to the Kyoto Protocol that relate to quantitative commitments post-2012 have been proposed by non-Annex B Parties.Footnote 116 Even assuming it does, and States adopt the proposed amendments in Durban, they will have less than nine months to fulfill the domestic legislative and other requirements necessary to ratify these amendments to ensure that they enter into force by 1 January 2013. At this juncture the question is not if there will be a gap between commitment periods but if that gap will come to an end. On this the reading from the tealeaves is clear. The Cancun Agreements seek first to begin the bridging process between the tracks, next drain the Kyoto Protocol of its politically palatable content, and finally allow the Kyoto Protocol to wither away through studied neglect.
The Cancun Agreements as noted above, create a bridging device—an information document containing developed country pledges—across the Kyoto Protocol and FCCC tracks, a first step towards eventual merger of the tracks, and indeed replacement of the Kyoto Protocol. The LCA Outcome Decision seeks to salvage those parts of the Kyoto Protocol that are politically palatable, namely, the communication and review provisions in articles 5, 7 and 8.Footnote 117 The export, even if partial and selective, of language from these provisions into the decision, while sensible, in that these requirements can be harmonized, built on, and applied to all developed countries, does also bode ill for the Kyoto Protocol. In addition the Cancun Agreements seek to create a lifeboat for the Protocol mechanisms, and the associated decisions that flesh it out. The Kyoto Outcome Decision provides that emissions trading and the project-based mechanisms under the Kyoto Protocol ‘shall continue to be available to Annex I Parties, in accordance with relevant decisions of the CMP.’Footnote 118 The LCA Outcome Decision undertakes to ‘build upon existing mechanisms, including those established under the Kyoto Protocol.’Footnote 119 The less politically palatable elements of the Kyoto Protocol—quantified emission limitation and reduction objectives as well as the compliance system—will fall by the wayside. If Annex I countries do not assume targets for the second commitment period, very little of the Kyoto Protocol, after the compliance assessment cycle is complete in 2015/2016, will survive.
B. Differentiation
Although the Cancun Agreements, 2010, refer to the principle of common but differentiated responsibilities and respective capabilities,Footnote 120 and even unusually, to ‘historical responsibility,’Footnote 121 in keeping with the effort to move beyond the Kyoto Protocol, there is a gradual erosion of the form of differentiation in evidence there.
From Bali to Cancun, the international community has moved towards increasing parallelism between the mitigation commitments and actions taken by developed and (some) developing countries. Since the political conditions for strengthening the overall mitigation effort are missing, such symmetry has been achieved at the cost of ambition, and by leveling down the mitigation efforts required of developed countries. Taking note of non-existent documents likely to contain pledges that will not meet the stated 2°C goal, as the Cancun Agreements do, is a far cry from Kyoto-style quantitative targets and timetables. In addition there is a gradual delinking of the mitigation actions required of developing countries from the support provided for these. Developing countries, especially those labeled ‘emerging economies’ and ‘major emitters,’ are expected to do more and more for less and less.
The international community has also moved towards increasing parallelism in the informational demands—measurement, reporting and verification—placed on developed and developing countries. There is an increase in the frequency, rigor and review of national communications for developing countries, and an extension of the requirements placed on Protocol Parties to non-Parties. The Cancun Agreements establish similar processes to consider the information—international assessment and review for developed countries, and international consultation and analysis for developing countries. The increasing parallelism in this area has been achieved by leveling up the demands placed on developing countries. Intriguingly, there are some instances in the Cancun Agreements of greater burdens on developing countries. The ICA process, for instance, unlike the international assessment and review process, leads to a summary report. Developing countries' mitigation proposals, unlike developed country mitigation proposals can be updated.Footnote 122 It is conceivable that in combination with the ICA summary reports, these could be constructed as a ratchet mechanism to require developing countries to increase the ambition of their mitigation proposals.
C. Legal Form and Architecture
The Bali Action Plan that launched the process towards an ‘agreed outcome’ in Copenhagen left the legal form as well as the ambition of that outcome uncertain.Footnote 123 Six agreements—Protocols from Japan,Footnote 124 Australia,Footnote 125 Tuvalu,Footnote 126 Costa RicaFootnote 127 and GrenadaFootnote 128 and an Implementing Agreement from the United StatesFootnote 129—have been communicated to Parties. All these instruments appeared on the agenda for COP-16, and were discussed, in conjunction with a discussion on the legal form of the AWG-LCA outcome. Many countries favor a new legally binding instrument under the FCCC, but architecture of this new instrument, as well as the fate of the Kyoto Protocol and its relationship to such a new instrument remains unclear. Most developed countries favor a single integrated instrument that replaces the Kyoto Protocol. This would, in their view, ensure greater participation and therefore effectiveness of the climate regime. In particular it would ensure the participation of the United States. The European Union, among others, aims to build on the key elements of the Kyoto Protocol, but the extent to which this is possible, given the negotiating positions of the United States, is unclear. The small island States and other vulnerable countries are also in favor of a legally binding instrument, albeit one that would complement the Kyoto Protocol, as they believe this to be the appropriate vehicle for an ambitious and effective climate regime. China and India, among other developing countries, are opposed to such an instrument. This instrument is likely, in their view, to reflect a bottom-up approach, erode the distinctions between developed and developing countries, and cherry-pick from the Kyoto Protocol, in the process losing many key elements of the Kyoto Protocol—in particular, the compliance system—and diluting other rules. This instrument is also likely to create more onerous obligations for developing countries and these may constrain their development prospects.Footnote 130
The Cancun Agreements do not resolve the contested issue of legal form. An introductory paragraph to the LCA Outcome Decision notes that ‘nothing in this decision shall prejudge prospects for, or the content of, a legally binding outcome in the future.’Footnote 131 The AWG-LCA is mandated ‘to continue discussing legal options’ to reach an ‘agreed outcome’ based on the Bali Action Plan, 2007, the work done at COP-16, and Parties' proposals.Footnote 132 The mandate of the AWG-LCA, set out in the Bali Action Plan, thus extended to cover consideration of the treaty proposals submitted by Parties, implies that the issue of legal form will be discussed in one rather than multiple negotiating forum from here on. There is no deadline, however, indicated in the Cancun Agreements for a resolution of this issue. The process feared by some developing countries—weakening of the Kyoto Protocol—even in the absence of a new legally binding instrument, made headway in Cancun, and is likely to gather steam ahead.
IV. PROCESS AND PROCEDURE
The Cancun climate negotiations stretched into the early hours of the day after its scheduled end. The events of the final day were less acrimonious than in Copenhagen, yet remarkable nonetheless. Notwithstanding the avowals to transparency and inclusiveness, the final days were marked, as ever, by closed-door Ministerial consultations on discrete pieces of text sown together by the Mexican Presidency. These pieces of text were drawn from non-papers that facilitators, both at the Ministerial and negotiator levels, had prepared, which in turn were based on Parties' submissions and elements of the Copenhagen Accord. While these texts had not been negotiated in formal or informal sessions, they were familiar to Parties. The final deal was drafted to ensure that compromises, where struck, did not breach red lines for the key players. Areas ‘criss-crossed with red lines’Footnote 133 such as global goal and peaking year, on which effective compromises were not possible, were placed on the agenda for Durban or later.
When Espinosa presented the Cancun Agreements to Parties in an informal plenary on the last day, she was treated to the first of many standing ovations. Climate negotiators, still reeling from the trauma of Copenhagen, and in search of a glimmer of hope, found it in Cancun. Bolivia asked but was not granted the floor at this informal plenary. The Cancun Agreements were presented a few hours later in formal meetings of the AWG-LCA and AWG-KP, from whence they were forwarded for adoption to the COP and CMP. In each of these formal meetings the Bolivian delegation, led by Ambassador Pablo Solón Romero, registered a lengthy, lucid and unequivocal objection to the decisions. Bolivia argued that the decisions needed to be discussed and negotiated, and that no opportunity had been afforded to do so. Bolivia also argued that the decisions were not sufficiently ambitious, they would lead to a voluntary regime for developed countries, and that taking note of documents that did not exist was tantamount to signing a ‘blank cheque.’Footnote 134 For these and other reasons, Bolivia rejected the Cancun Agreements.Footnote 135 The presiding officers, however, overruled Bolivia, declared consensus, and adopted the Cancun Agreements, to thunderous applause.
The FCCC authorizes the COP to adopt, by consensus, rules of procedure for the conduct of its work.Footnote 136 In the absence of consensus on the rules of procedure relating to voting, decisions in the FCCC and Kyoto Protocol process, except where otherwise expressly provided,Footnote 137 are taken by consensus.Footnote 138 There is no established definition of consensus in the FCCC process. Consensus has come to be generally understood, through the practice and codified rules of other multilateral processes,Footnote 139 as the absence of express opposition.Footnote 140 It is this understanding that has guided the practice in the climate process. There are examples of presiding officers presuming consensus in the face of imminent opposition. It took such a well-judged presumption to reach agreement on the FCCC. The Chair of the Intergovernmental Negotiating Committee, Jean Ripert, gaveled the FCCC through with Member States of the Organization of Petroleum Exporting Countries (OPEC) and Malaysia requesting the floor. The President of the first Conference of Parties, Angela Merkel, gaveled the Berlin Mandate through with member states of OPEC waving their flags.Footnote 141 These are instances of imminent but not express opposition. The would-be objectors in these cases did not later challenge the adoption as unlawful. There have been two instances of express objections—at COP-2, Geneva, 1996, and at COP-15, Copenhagen, 2009. In these instances the documents in question—the Geneva Ministerial Declaration and the Copenhagen Accord—were ‘taken note of’ rather than adopted as decisions.Footnote 142 The Cancun Agreements represent the first set of decisions in the climate regime adopted in the face of an express objection from a State. It could be argued that the earlier understanding of consensus in this process has now been displaced or at least disturbed. Yet it is unclear what it has been replaced with—a rule of ‘quasi-consensus,’ ‘general agreement,’Footnote 143 ‘consensus minus one,’Footnote 144 or as one negotiator characterized it, ‘terror by applause’?Footnote 145
Consensus is a political rather than a legal concept.Footnote 146 Consensus does not require full agreement, as consensus can be said to exist even when there are abstentions.Footnote 147 Consensus does not also translate into unanimity, as consensus, unlike unanimity, is arrived at without a vote, and can accommodate dissent, in so far as it is not express. However, consensus has, thus far, been identified by the absence of express objection. If this no longer holds, how else can consensus be identified? Espinosa justified the declaration of consensus on the ground that she could not disregard the vision, positions, and request of 193 States.Footnote 148 In her interpretation, consensus could be interpreted as ‘consensus minus one’ or ‘quasi consensus.’Footnote 149 The United States intervened to suggest that the practice followed in the FCCC process was one of decision-making by ‘general agreement’ rather than consensus.Footnote 150 In this interpretation, a general convergence of opinion, which could arguably accommodate more than one express objection, is the operative rule of decision-making. It is unclear however how ‘general agreement’ differs from the majority view. Colombia noted that ‘the acclamation with which this document was accepted’ demonstrates consensus.Footnote 151 Gabon agreed that a ‘standing ovation’ demonstrates the will of the international community.Footnote 152 These interpretations identify the existence of consensus not by the absence of express objection but the presence of acclamation, or an unspecified decibel level of applause. Admittedly, presiding officers often use acclamation to gauge the mood in the room, to close debates,Footnote 153 and to adopt decisions. Indeed, COP/CMP officers are elected by acclamation. However it would be unfortunate if acclamation were used to overpower objections rather than signal consensus.
Colombia, Gabon and Espinosa, among others, noted that consensus does not deliver a veto power to every nation.Footnote 154 Many consider the exercise of a veto an abuse of the consensus rule. It is worth considering whether Bolivia's actions can be characterized as an attempt to exercise a veto. If yes, it would appear that Espinosa was correct in respectfully overruling it. If not, what protects Bolivia's actions from such a charge?
Consensus, in the conventional sense, is intended to serve a useful function. As an alternative to confrontation, it requires greater diplomacy, bargaining, and negotiation, and therefore ensures wider buy-in and commands greater moral authority.Footnote 155 At least some of these have been in shortly supply in the FCCC process. Parts of the Cancun Agreements were never discussed, let alone negotiated. The formal sessions met to adopt not negotiate the texts emerging from Ministerial consultations. The prevailing sentiment was that the FCCC process needed a face-saving deal, after the Copenhagen debacle, to legitimize its existence and secure its future. There was consensus in Cancun on this, not on the texts, which will, undoubtedly, be re-negotiated in times to come. The fact that negotiators at the Bangkok meetings of the AWG-LCA, that concluded on 8 April 2011, used the entire meeting just to arrive at an agenda of work for 2011, substantiates this view. Bolivia was seeking ‘an opportunity to discuss and negotiate,’ not to exercise a veto, which, in their view, is not a democratic device. Bolivia was ‘not opposed to consensus emerging from a democratic discussion.’Footnote 156 The texts produced in Cancun did not emerge from a democratic discussion. Indeed, such democratic discussions in the fraught FCCC process have become anathema to deal making. Yet it is precisely such democratic decision-making that the consensus rule seeks to incentivize.
The adoption of the Cancun Agreements in the face of Bolivia's express objection will likely lead the FCCC process into unchartered procedural waters. A solitary express objection it appears can be overruled. This is problematic because, as Bolivia pointed out, the fate meted out to Bolivia in Cancun may be visited on another State. From this to selective application of rules to suit the majority, is a small step.Footnote 157 It is perhaps in recognition of this that Venezuela, which, unlike in Copenhagen, did not support Bolivia, nevertheless asked that Bolivia's concerns be accommodated in a ‘legal way.’Footnote 158 Bolivia's objection has since been duly reflected in the report of the conference.Footnote 159 Should Venezuela have chosen to join Bolivia, could two express objections be overruled and consensus declared? If consensus is interpreted as ‘general agreement’ or a function of applause, it presumably could.
The opening up of the definition and practice of consensus in the FCCC process in this fashion will function to marginalize States, not just from the process of decision-making in discrete instances, but from ownership of the process itself. Bolivia has no recourse barring perpetual objection or non-participation. Since COP decisions are not in a formal sense legally binding,Footnote 160 Bolivia could choose not to implement the Cancun Agreements. Yet the negotiations over the next few years will be conducted on the basis at least in part of these decisions. At Cancun, Bolivia threatened to ‘apply to all international bodies’ if an infringement of the consensus rule occurred.Footnote 161 But, this path is fraught with sufficient legal difficulties—establishing jurisdiction of a dispute settlement body,Footnote 162 identifying a respondent with international legal personality etc—to make such recourse an exercise in frustration. The open-textured interpretation of consensus applied in Cancun also has the potential to amplify power imbalances. It is inconceivable, for instance, that China would be overruled in the fashion that Bolivia was—however sustained the applause. The determining factor, then, it appears is the extent to which the objecting State is politically consequential to the effective implementation of the decision.
The opening up of the definition and practice of consensus may, on the other hand, create the conditions necessary to resolve procedural issues that have created a drag on the evolution of the climate regime. The pursuit of consensus has wrested a heavy price in terms of time, presidential dexterity, and substantive content (creating as it does a pull towards the lowest common denominator).Footnote 163 Contrary to its intended effect, in practice the search for consensus has also driven negotiations into informal settings, thereby diluting transparency and accountability.Footnote 164 In the absence of a voting procedure to resort to, strict adherence to the consensus rule can also deliver veto power to every nation. In this context it is worth enquiring if the character of the decisions (political or legal) determines the application (or not) of the consensus rule. Arguably decisions that provide political direction rather than substantive guidance do not attract the consensus rule.Footnote 165 In any case, since agreement on the rules of procedure, to be arrived at by consensus, is not on the horizon, arguably the evolution of the climate regime hinges on political judgments, however troubling, of the sort arrived at by Espinosa in Cancun.
Bolivia's interventions on substance and procedure were irrefutable, but in Cancun, they were on the wrong side of history. It remains to be seen as these negotiations unfold if history will judge Bolivia as a pesky rabble-rouser, or the sole, if ineffectual, gatekeeper of integrity, equity and ambition in the climate negotiations.
V. CONCLUSION
Given the many political constraints the international climate negotiations face, the Cancun Agreements represent the best of what could realistically be delivered. While the mitigation text is inadequate and perplexing, it merely mirrors the permanent flux the international community is in due to the reluctance of the United States to accept constraints on its GHG-intensive lifestyle, and of large developing countries to entertain limits to their development prospects. In other areas, the Cancun Agreements were instrumental in integrating the compromises reflected in the Copenhagen Accord into the FCCC regime, and in the process ironing out the creases that had crept in during the Heads of State level negotiating exercise. The Cancun Agreements like the Copenhagen Accord leave the fundamental cleavages between Parties—on the future of the Kyoto Protocol, differentiation and legal form and architecture—unresolved. Nevertheless they provide a clear indication of the path the future climate regime is likely to take. This path is likely to forsake the Kyoto Protocol, its ‘targets and time-tables’ approach, its unique form of differentiation and its compliance system. The future climate regime is likely instead to be structured around symmetrical obligations relating to self-selected mitigation targets and actions and a robust MRV system. Only time will tell if this path will achieve the stated goal of limiting temperature increase to 2°C. But in the meantime, the climate negotiations, and the FCCC process were given a new lease of life at Cancun.
