Environmental Law and Policy in Namibia: Towards Making Africa the Tree of Life (Third Edition)

II. INTERNATIONAL CLIMATE CHANGE POLICY: WHERE DO WE STAND?

Nadia von Bassewitz

1 Introduction

The article begins with a description of the major legal instruments of international climate change policy in the first section, followed by an analysis of the developments leading up to the failed COP 2010 in Denmark in the second section and beyond until the COP 2014 in Lima in the third section, before undertaking a forecast for the up-coming COP 2015 in France in the fourth section, outlining possible elements for a new international climate deal. The last section we investigate which policy instruments individual countries use to address global warming especially in terms of mitigation and funding. For this exercise we will assess three countries which together account for more than 65% of global GHG emissions, two of which are developed countries namely the EU, which is a Kyoto Annex I party (and third largest emitter); and the US, which has never ratified Kyoto (and the second largest emitter) and one developing country, a member of the BASIC group, namely China, as a Non-Annex I party (and the highest current emitter of GHGs).

2 Key Legal Framework Documents

From its inception, international climate change policy and legislation was firmly rooted in the United Nations (UN) system. During the mid- to late 1980s, for the first time ever, research was able to demonstrate that man-made global warming was indeed happening.

Against this background, the United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO) set up an Intergovernmental Panel on Climate Change (IPCC) in 1988 to gather the scientific evidence for (or against) human-induced global warming.

The IPCC’s first Assessment Report, which appeared in 1990, indicates for the first time that global warming was a reality, triggering worldwide concern:

2.1 United Nations Framework Convention on Climate Change, 1992

Based on the findings of the 1990 IPCC Assessment Report, the UN Framework Convention on Climate Change (UNFCCC) was signed during the Rio Earth Summit in June 1992, and entered into force on 21 March 1994. The major accomplishment of the UNFCCC was that it recognised, for the first time, that there was indeed a man-made problem of climate change at a moment when there was still considerable doubt regarding the causes of global warming, its extent and impact.3

The ultimate objective of the UNFCCC is to stabilise greenhouse gas (GHG) concentrations “at a level that would prevent dangerous anthropogenic interference with the climate”.4 According to the UNFCCC, this level should be reached within a time frame which allows ecosystems to adapt naturally to global warming, while making sure that food production is not at risk and that development occurs in a sustainable manner.

The UNFCCC is a framework document which introduces two main policy approaches which are intrinsically linked in order to address global warming, namely mitigation and adaptation:

Any country can become a party to the UNFCCC,9 thus making it a global instrument. At the same time, the UNFCCC notes that –

As a consequence, the UNFCCC introduces the principle of “common but differentiated responsibilities and respective capabilities” (CBDR principle) for its member states.10 The CBDR principle has its foundation in the equity principles of international law and includes two elements: while all states together have a common responsibility for the protection of the environment, there are nonetheless differences between the states in terms of their historical contribution to global warming and their ability to fight it, which is why states need to bear different responsibilities.11 In light of this, the UNFCCC foresees asymmetrical obligations for its members and places the heaviest burden on the wealthier industrialised states.12

In line with the CBDR principle, the UNFCCC divides Parties as follows:

However, it is important to understand that the CBDR principle is not deemed absolute under the UNFCCC and that the UNFCCC provides, to a certain degree, for a transition from the Non-Annex I group to the Annex I group.

Based on the CBDR principle, the UNFCCC imposes voluntary mitigation targets for Annex I parties, according to which they were supposed to reduce their GHG emissions to 1990 levels by the year 2000. As economic development is vital for the world’s poorest countries, the UNFCCC accepts that GHG emissions originating in those countries would grow in the near future, as a result of which Non-Annex I parties were not subject to mitigation targets. The UNFCC aims at helping the developing countries limit emissions in ways that will not restrict their development.

The UNFCCC obliges OECD members (the Annex II parties) to support developing countries in the elaboration of national adaptation plans.14 Moreover, industrialised members agreed to share adaptive know-how and technology to offer urgently needed capacity-building for Non-Annex 1 parties.15

2.2 The Kyoto Protocol, 1997

The publication of the Second IPCC Assessment Report in 1995 showed that the measures taken up to that point under the UNFCCC to fight global warming were insufficient. As a consequence, on 11 December 1997, the UNFCCC Parties signed the Kyoto Protocol to the UNFCCC,16 which came into operation on 16 February 2005. At that time, more than 55 countries had ratified Kyoto, accounting for more than 55% of global carbon dioxide emission in 1990. This included all OECD countries but the United States of America (USA/US): the biggest emitter in 1990, the US signed but has never ratified the Protocol. As at the time of writing, 190 countries and the European Union (EU) have ratified Kyoto, while Canada withdrew in December 2011.

In brief, the Protocol operationalises the UNFCCC:17

It shares the objectives, instruments and the institutions of the UNFCCC. Even more importantly, Kyoto replicates the CBDR doctrine formulated in the UNFCCC. However, as opposed to the UNFCCC, Kyoto excludes a transition from the Non-Annex I category to the Annex I category, hence introducing a so-called firewall between these two groups of countries.

The major distinction between the UNFCCC and Kyoto is that, for the first time ever, a UN instrument imposes legally binding mitigation targets as opposed to the non-binding goals under the UNFCCC. In line with the CBDR principle, only Annex I parties take on binding mitigation objectives, while the Non-Annex I parties are expected to carry out voluntary mitigation actions.

2.2.1 Mitigation

Kyoto introduces binding quantified emission reduction targets for the industrialised countries. Under the Protocol, 41 industrialised countries – including EITs and the EU – are obliged to reduce their GHG emissions by 5.2% compared with 1990 levels over the first commitment period from 2008 to 2012.18 The individual national targets include, from the 1990 base year, an 8% decrease for the EU,19 6% each for Canada and Japan, no decrease for Russia, and an 8% increase for Australia.20

The Kyoto Protocol allows for more flexibility as to how to meet binding GHG emission reduction targets by designing three innovative instruments. Under the Clean Development Mechanism (CDM), countries with Kyoto targets may implement an emission reduction project in developing countries, based on which they obtain certified emission reduction (CER) units, which count towards fulfilling their Kyoto obligations.21 A CDM project is obliged to confer measurable and verifiable emission reductions that are additional to what would otherwise have occurred without the CDM.22 Join implementation is a mechanism similar to the CDM, but the emission reduction project has to be implemented in industrialised countries.23 CDM and joint implementation are the first global investment tools of their kind, stimulating foreign investment and knowledge transfer in the host country, while offering industrialised countries flexible and cost-effective ways of meeting a part of their Kyoto obligations.24 Emissions trading is based on the idea that the mitigation targets under Kyoto are formulated as levels of permitted GHG emissions over the 2008–2012 commitment period. As laid down in Article 17 of Kyoto, emissions trading permits countries with CER units to spare to trade such units with other countries that have exceeded their CER allowance.25

Under Kyoto, Parties are obliged to monitor their GHG emissions and to keep a national register of trades carried out under Kyoto.26 The UNFCCC Secretariat keeps an independent transaction log to verify that operations are consistent with the Kyoto Protocol. Furthermore, a compliance mechanism has been established to verify the implementation of the Protocol by its members.

2.2.2 Adaptation

Under the adaptation objective, the Kyoto Protocol, like the UNFCCC, is designed to support developing countries, especially LDCs and SIDSs, in adapting to the inevitable impacts of climate change and in facilitating the development of know-how and technologies that could help increase resilience to climate change impacts.27 A range of funds has been created through the UNFCCC, which are managed by the Global Environment Facility.

3 Developments up until Copenhagen, Denmark 2009

3.1 Taking Stock of the Kyoto Protocol

When evaluating Kyoto, we have to recall the logic behind the agreement. Kyoto was always deemed an initial step towards a low-carbon future,28 introducing humble reduction targets of 5% for industrialised countries over a short period of five years only, until 2012. After 2012, Kyoto was to be followed by a chain of other agreements to impose ever wider and deeper reductions for Annex I parties. Developing countries were expected to follow suit in time, so that at last, all countries would have binding GHG emission reduction goals.

In defence of Kyoto, it must be said that the problem of global warming does not easily lend itself to a binding international agreement. To name but a few issues, the allocation of responsibility for the existing level of GHGs is complex; the measurement of emissions is at best weak; GHG emissions per capita are low in those nations most rapidly increasing their overall emissions; and the impact of global warming varies between countries.29 Additionally, the complexity of global warming is increasing all the time and is having a severe impact on international negotiations,30 which is why each negotiation round becomes more demanding.

However, the results of Kyoto are mixed, to say the least. Economists agree that the Protocol imposes relatively high costs and generates negligible benefits, while failing to provide a real solution.31 Additionally, most climate researchers warn that the Protocol has failed to decrease GHG emissions to the extent necessary.32 Progress towards the mitigation targets under Kyoto has also not been satisfying. According to the Netherlands Environmental Assessment Agency (NEAA), industrialised countries will, as a group, probably meet the GHG emission reduction goals imposed under Kyoto.33 When extrapolating the trend of the years 2000-2007 to the period 2008-2012, NEAA forecasts an average emission reduction of almost 16% for this group of countries in the first Kyoto commitment period.34 However, the NEAA also indicates that the expected decrease of 16% is mainly attributable to large GHG emission reductions of about 40% in Germany and the EITs after the fall of the Berlin Wall.35 The World Bank reports that there are significant differences in performance across individual countries.36 If one looks at the individual state level, the compliance gap for many of them is quite noteworthy.37

Various factors have contributed to this underachievement. Some are linked to the Kyoto Protocol itself, others go beyond the scope of Kyoto, as follows:

An important deficiency of the Kyoto regime itself is the lack of broad participation, i.e. the number of countries willing to take real action via obligatory mitigation objectives has always been quite small.38 The world’s largest GHG emitter at the time, the US, has never ratified Kyoto. Canada, an Annex 1 state party, left Kyoto in December 2011. Moreover, the largest increase in GHG emissions today originates from six newly industrialised countries (NICs), i.e. including the BASIC group made up of Brazil, China, India and South Africa, as well as Indonesia and Mexico. These six countries ratified Kyoto as Non-Annex I parties. As a consequence, nowadays, Kyoto addresses only 14% of GHG emissions in the world.39

Another great – if not the greatest – weakness of Kyoto is its inflexible partition of countries into two groups in line with the CBDR dogma, building the so-called firewall between Annex I and Non-Annex I members, which has reinforced the existing ideological North-South divide.40 Kyoto has no graduation process by which to verify whether some of the NICs such as the BASIC group are ready to join the Annex 1 group.41 This split between richer and poorer nations under Kyoto is clearly outdated and inaccurate, with 50 Non-Annex I countries now having a larger per capita income than some of the Annex I countries.42 But, more importantly, the partition means that today’s biggest GHG emitter, China, remains unconstrained in its emissions output, implying that half of all worldwide emissions will in the near future be generated in a country without binding mitigation targets.43

Another important shortcoming of Kyoto relates to the lack of compliance incentives and enforcement mechanisms to deter non-participation and non-compliance.44 The UNFCCC, like Kyoto, includes rules for monitoring compliance, in particular for the GHG emission reduction targets of Annex I countries. But monitoring is still inadequate, both in terms of linking it to effective implementation and including issues of importance for developing countries.45

In light of the above, it was recognised as early as 2005 that Kyoto on its own was insufficient to fight global warming and, beginning with the 2005 COP in Montreal, the international community launched a discussion about the way forward.

3.2 COP12, Montreal, Canada, 2005

The 2005 COP in Montreal adopted a set of decisions which laid the foundation for an innovative dual-track climate negotiation process:46

The first track, the so-called Kyoto track, is about negotiating obligatory emission reduction targets for Annex I parties for a second commitment period (CP2) of Kyoto beyond 2012. This negotiation path is only open for Annex I parties. The negotiation track is supervised by the Ad Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol (AWG-KP).

The second track, the so-called UNFCCC track, involves the negotiation of emission reduction goals for industrialised countries that have not ratified Kyoto, i.e. first and foremost the US. This track also covers negotiations for nationally appropriate mitigation actions (NAMAs) to be undertaken by developing countries. This track is open to all UNFCCC Parties. The negotiation path is overseen by the Ad Hoc Working Group for Long-term Cooperative Action under the UNFCCC (AWG-LCA).

3.3 COP13, Nusa Dua, Bali, Indonesia, 2007

In 2007 the IPCC’s Fourth Assessment Report substantially increased the pressure on the international community to urgently address global warming.

3.3.1 Outcome

The COP13 in Bali in 2007 decided to uphold the dual negotiations path under both the UNFCCC and Kyoto, with the expectation that the two tracks should be unified in Copenhagen in 2009.

The COP adopted the Bali Road Map, which is an overarching term to include all the decisions made in Bali, identifying the challenges under the two negotiation streams.47 The main objective of the Road Map was to achieve a legally binding, inclusive climate agreement in Denmark 2009, which was to replace Kyoto after 2012 and would ideally include all major GHG emitters.

The Bali Road Map includes the Bali Action Plan (BAP) which lays down the mandate of the AWG-LCA to supervise the UNFCCC negotiation track.48 The BAP is built on five pillars, i.e. a shared long-term vision as well as enhanced action on mitigation, adaptation, technology and funding, which has determined the agenda of any COP ever since. Some of the BAP’s highlights are as follows:

For the first time, the COP managed to put deforestation on the international climate agenda, which accounts for 20% of all GHG emissions. The Parties agreed to study the issue, especially on how to measure GHG emissions from deforestation with a view to launch a UN Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (UN-REDD) initiative.

3.3.2 Assessment

When the COP13 in Bali was evaluated, its outcomes were considered a leap forward in many respects. The BAP was notable in being the first international climate decision after Kyoto which the US joined, despite vigorous earlier opposition. This gave hope that the US could be re-engaged in the post-2012 climate negotiations.

Yet, many vital issues remained open in Bali:53

3.4 COP15, Copenhagen, Denmark, 2009

The COP15 in Denmark in 2009 was meant to finalise two years of intense negotiations which had been launched with the 2007 Bali Road Map and, more importantly, consolidate the two negotiation tracks under the UNFCCC and Kyoto.

3.4.1 Outcome

With the negotiations on the verge of collapsing, all the COP15 managed to deliver was the informal Copenhagen Accord,54 a three-page document with two empty annexes addressing the following:

3.4.2 Assessment

Initially, most observers showed profound frustration, because for them the three-page Copenhagen Accord represented all that was wrong with international climate negotiations:59

It was felt that the COP had covered no ground whatsoever towards a binding post-2012 climate agreement, as neither of the two working groups, i.e. the AWG-KP and AWG-LCA, had been able to reach a formal decision. Instead, the Copenhagen Accord is a non-binding informal decision, which was not even supported by all UNFCCC members. Due to opposition by a handful of states at the 11th hour, the COP only “took note” of the decision.60

The Accord does not impose a long-term binding mitigation goal on all industrialised countries; nor does it foresee mitigation commitments for the NICs. Instead, the Accord introduces an “open enrolment” framework under which states can register their voluntary domestic mitigation pledges.61 From the onset, experts have been wary about the quality of the voluntary mitigation pledges. Indeed, today, experts are unanimously of the view that the pledges do not suffice to keep global warming at 2°C below pre-industrial level; instead, the pledges would reflect a target of approximately 3°C.62 Highlighting the gap between the pledged and the necessary GHG emission reductions (the so-called ambition gap), experts since have called for increased reduction targets. Moreover, most of the pledges that are deemed insufficient are listed with conditions.63

What is more, like no other COP before it, Copenhagen revealed the dividing lines on the terms of a post-2020 climate agreement:

However, observers soon realised that, with the Copenhagen Accord, a total breakdown of the climate negotiations had been prevented.69 By the end of 2010, the Accord had become the first-ever vehicle to include explicit, albeit not unconditional, mitigation pledges from all the world’s major economies, including China, India and other large developing states.70

Experts now believe that the Accord is a compromise of what was realistically possible, given the political impasse.71 Other observers go as far as implying that Denmark could have seen the emergence of a new climate architecture – moving away from the top-down model of Kyoto with its internationally agreed obligatory emission limits and designated instruments, towards a bottom-up model relying on voluntary national pledges and using flexible instruments.72

4 Developments Beyond Copenhagen 2009 until Lima 2014

4.1 Taking Stock of the Copenhagen Accord

Undoubtedly, the weak outcome in Denmark raised important questions about the future of the international climate negotiations.

The first question was how to incorporate Copenhagen, which is an informal political decision reached outside the UNFCCC process, into the UN legal framework.73 After Copenhagen, three possible scenarios were discussed:

An even more important question concerned the form of a post-2012 climate treaty and how best to reach it. In view of the weak COP outcome in Copenhagen, quite a few observers argued that the EU’s “global climate deal" strategy75 was obsolete, and that a new approach to formulating a climate treaty was necessary.76

Indeed, Denmark had exposed major hurdles on the way to a new legally binding global climate agreement:77

Of the major GHG emitters that account for two thirds of carbon dioxide emissions (China, the EU, India, Russia and the US), only the EU unequivocally supports the idea of a new global legally binding treaty. The EU was, however, unable to exercise leadership at Copenhagen, and instead, the negotiations were overshadowed by the political impasse between the US and China: Washington made its ratification of a new binding treaty contingent on obligatory GHG emission reduction goals for key developing countries, such as those of the BASIC group. On the other hand, China remained opposed to any kind of binding objectives unless the US took the initiative in limiting its GHG emissions.78

Experts have, before and after Copenhagen, investigated various other options for a post-2012 climate treaty. There is unfortunately only room to discuss three pertinent aspects here:79

Top-down v bottom-up model: The EU and developing countries, particularly LDCs and SIDSs, insist that a top-down model à la Kyoto, with internationally agreed obligatory emission reduction goals, is the only way to meet the long-term 2°C objective under the UNFCCC. In contrast, the US and others are of the view that a bottom-up approach of the UNFCCC or the Copenhagen with voluntary pledges is likely to be more effective, as countries will submit only what they can actually realise. A growing number of observers postulate that what is really needed is something in-between: an international legal instrument that is flexible enough to guarantee wide participation, and binding enough so that Parties can be reasonably confident that others will fulfil their obligations.80 Although dispensing with the idea of a legally binding climate deal, this option maintains the need for a strong international climate framework by embedding national pledges in a wider international regime.81

All-inclusive treaty v issue specific agreements: Instead of waiting for a comprehensive post-2012 climate deal, which includes all pillars of the Bali Road Map, many observers today suggest a fragmentation of the climate negotiations.82 They want to disaggregate the key issues into components that can be developed in a more flexible way through parallel agreements using various sets of instruments, institutions and methods which are only integrated and linked over time.83 They favour negotiating (i) issue-specific agreements or (ii) agreements which target specific industries or specific policies, or (iii) agreements involving only a few like-minded countries.84 Specifically, considering the logjam between the US and China, there is a growing number of experts who recommend that a ‘coalition of the willing’ including the EU, Japan and Russia and progressive developing countries such as Indonesia, Korea and Mexico should continue with Kyoto beyond 2012.85

UN negotiation framework: The last major question that needed to be looked at after Denmark involved the obvious weaknesses of the UN negotiation framework. Observers agreed that there was an urgent need for more effective decision-making rules, which simultaneously guaranteed participation and inclusiveness. 86 After Copenhagen, various options were discussed. Under the first main option, negotiations would continue under the UN umbrella, but the decision-making procedure would be overhauled by (i) introducing majority rule, or (ii) keeping voting rules as they were, but using more exclusive negotiation groups.87 Other experts looked beyond the UN as a negotiation platform and suggested using other forums. 88 Alternatives included specialist institutions, i.e. the International Maritime Organization, the International Civil Aviation Organization or other broader international institutions, like the G8, the G20,89 or the Major Economies Forum on Energy and Climate.90

4.2 COP16, Cancun, Mexico, 2010

4.2.1 Outcome

The Cancun Agreements did extremely well to integrate the key elements of the Copenhagen Accord into the UNFCCC.

Cancun includes, for the first time in an official UN document, the objective to limit the temperature increase below 2°C. Unlike the year before, in Cancun the Parties formally agreed to the goal instead of only taking note of it.

By incorporating the mitigation targets and actions pledged under Copenhagen into the UNFCCC, the new agreements set GHG emission reduction goals for some 80 countries.91 As a consequence, for the first time, all the large GHG emitters – including Brazil, China, the EU, India and the US – have signed up under the UNFCCC for targets and actions to reduce GHG emissions by 2020.92

Under the UNFCCC track, the COP inaugurated the Cancun Adaptation Framework in order to improve adaptation efforts and instituted an Adaptation Committee to provide technical support to LDCs on adaptation-related matters. 93 While the emphasis of Kyoto was on mitigation, Cancun put adaptation firmly on the table in line with the IPCC’s Fourth Assessment Report. The funding goals set in the Copenhagen Accord were reiterated.94 A Green Climate Fund was established and designated as an operating entity of the financial mechanisms of the UNFCCC, and will be operated under the guidance of the COP with the World Bank as its interim trustee.95

On the Kyoto track, while the decision about extending Kyoto beyond 2012 was once again referred to the next COP, progress was made on other issues,96 such as the agreement to use 1990 as a base year and to continue emissions trading and other market-based instruments inaugurated by Kyoto.

4.2.2 Assessment

Despite very gloomy predictions ahead of the Cancun COP, the participants achieved unprecedented consensus on a range of issues going forward.

Observers suggest that much of the progress reached could be linked to a somewhat changed negotiation approach. Importantly, Cancun knocked a hole in the firewall between Annex I and Non-Annex I parties – a key step in overcoming the rich-poor gulf which has hobbled climate negotiations for many years.97 The Cancun Agreements formulate two principles on which all countries are 98 (i) obliged to recognise their historic GHG emissions, i.e. the industrialised world, and (ii) liable for their future GHG emissions, i.e. the industrialised and the larger developing countries.

Moreover, the Parties seem to have recognised, at least implicitly, that moving forward in incremental steps is going to be more effective than holding out for an all-inclusive global climate deal.99

Similarly, after the hostile recriminations between the US and China which deadlocked the COP in Copenhagen, these countries adopted a more productive tone in Mexico, with India as a key broker.100

4.3 COP17, Durban, South Africa, 2011

4.3.1 Outcome

In spite of the doom and gloom at COP17’s opening, the Parties adopted the Durban Agreements on a range of issues that may lead to a historic breakthrough in international climate negotiations. What was sure was that COP17 kept the discussion of global climate efforts from breaking down and instead moved it in the right direction.101

Thirty hours after the scheduled end of the Durban COP, on the Kyoto track, the Parties agreed to a prolongation of Kyoto beginning in 2013. However, the details of the new reduction targets including the length of the new commitment period would be established at COP18. The BASIC group (and other NICs) remained Non-Annex I parties without binding targets.102

Parties to the second commitment period of Kyoto would have to submit their quantified reduction targets by May 2012. However, Canada, Japan and Russia indicated that they would not participate in Kyoto 2.103

The extension of Kyoto beyond 2012 was combined with the launch of new road map for the negotiation of a post-2020 climate agreement by way of “a protocol, another legal instrument or an outcome with legal force”.104 Negotiations are supervised by a newly formed Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), and are to finish no later than 2015. 105 The new climate deal is to come into effect only from 2020 onwards. Negotiations within the AWG-LCA stream were to continue for at least another year, until the COP in Doha.106

On the UNFCCC track, the COP took various significant steps to further the implementation of the Cancun Agreements:

A major outcome was the operationalisation of the Green Climate Fund to serve as a key vehicle for climate funding.107 For years, funding has been an issue of ongoing conflict between developing countries and their more industrialised counterparts. Though the UNFCCC includes funding mechanisms, it has a very weak role, and sums pledged to the three financing tools – the Least Developed Countries Fund, the Special Climate Change Fund, and the Adaptation Fund – are notoriously low.108 However, while Parties were able to decide on the institutional structure of the Green Climate Fund, the decision does not indicate where the money for the Fund will actually come from beyond 2012.109

Importantly, in order to further improve monitoring under the UNFCCC, Durban’s COP17 introduced –110 (i) a voluntary international assessment and review mechanism for developed countries, and (ii) a non-binding international consultation instrument for developing countries.

Finally, Parties agreed on various other operational actions including, for example, –111 (i) the upcoming inauguration of the new technology instrument in 2012, and (ii) funding and technical aspects of the REDD+ initiative.

4.3.2 Assessment

Observers believe that Durban kept the international climate negotiations intact and moving in the right direction, thus increasing the likelihood of meaningful long-term climate action.112 South Africa reopened the door to legally binding GHG reduction targets for all major emitters a door which seemed to have been closed after Denmark.113 For China, India and the US to even consider an inclusive and robust legal agreement beyond 2012 was certainly an important move.114

Durban was a step forward in more than one respect:

The key importance of the innovative ADP was not so much that a further negotiation stream had been launched: it would have been sufficient to prolong the UNFCCC track beyond 2012. It was more that, for the first time, Durban offered Parties the option of a more symmetrical future climate agreement.115 Thus, while the UNFCCC track is obliged to adhere to the CBD principle, the ADP does not necessarily have to do so.116 This is because the mandate to launch the Durban track does not include a reference to the CBDR principle of the UNFCCC or Kyoto, in spite of the insistence by Non-Annex I parties to do so.117

That Kyoto will live to see yet another day has been hailed as a major realpolitik victory for progressive countries, including the EU.118 Despite tough opposition, the EU managed to form a “green coalition” with the most vulnerable nations, LCDs and two of the BASICs (Brazil and South Africa) in order to obtain a road map for a new universal climate treaty.119 In doing so, the EU’s interventions were vital in avoiding another Copenhagen outcome, which, at times, was a very real possibility in Durban.120 According to observers, had there been no agreement on a road map, the EU would not have agreed to commit to a Kyoto 2; this, in turn, would have led to developing countries blocking any headway to be made along the AWG-LCA stream, with potentially devastating consequences for the overall international climate negotiations.121

What is also significant is the fact that old alliances were crumbling. In the past, developing countries used to negotiate as one G77 bloc, but were often hijacked by the larger developing countries. In Durban, for example, the LDCs and SIDSs formed a coalition with the EU.122 Similarly, the BASIC group fractured in Durban: first South Africa and then, later, Brazil insisted on a road map for a new universal treaty, while China indicated its willingness to ponder adopting binding goals after 2020.123

Yet again, observers raised various concerns.

For one, great ambiguity remains over the legal form of the post-2020 climate deal, particularly the binding nature of the emission targets. The Durban Platform does not indicate as to whether the new agreement should include legally binding mitigation targets. It can be expected that the US and others will continue to fight tooth and nail against having quantified binding goals in a 2020 agreement.124

Observers also warned that the new emission reduction targets under a Kyoto 2 would be much weaker than the ones under the first commitment period of Kyoto (Kyoto 1) because, for many countries, they would consist of voluntary national pledges which are not linked to an overall emission reduction objective.125 The large developing countries are still without binding targets, Russia and Japan will not participate in Kyoto 2, and Canada withdrew from Kyoto for good just after COP17 in Durban in 2011.

4.4 COP18, Doha, Qatar, 2012

4.4.1 Outcome

The Doha Climate Gateway successfully managed to end two long-standing negotiation streams, i.e. Kyoto and the UNFCCC track, and to progress to a unified track – the ADP – with the objective of an inclusive legal climate agreement by 2015.

First and foremost, the COP agreed on the revision of the Kyoto Protocol to formally establish Kyoto 2.126 Having been launched in 2005, the AWG-KP thus terminated its work in Doha. Parties also decided that Kyoto 2 would run for eight years, i.e. from 2013 through 2020.127 In addition, the extended Kyoto features an ambition trigger, requiring that Parties verify and increase their emission reduction targets by 2014 in line with the IPCC’s Fourth Assessment Report.128 In the face of strong Russian objections, as the main benefactor of hot air targets under Kyoto 1, Parties decided to restrict the use of the surplus emission allowance gained under Kyoto 1.129 For Non-Kyoto 2 parties such as Canada, Japan, New Zealand and Russia, COP18 agreed to restrict their eligibility to market-based instruments, including the CDM and emissions trading.130

Furthermore, the Parties agreed to terminate the Convention track under the AWG-LCA. As expected, the COP simply took note of the pledges already listed under Copenhagen, while launching a one-year work programme to verify those pledges.

A major outcome of the UNFCCC track was the agreement to look towards establishing some kind of ‘loss and damage’ mechanism in favour of the most vulnerable countries at COP19 in 2013.131 On the other hand, industrial countries refused any new funding commitment, and only agreed to maintain through 2015 the average finance levels provided during 2010-2012 – roughly US$10 billion a year.132 At least a few European countries, i.e. Denmark, France, Germany, Sweden, and the UK, pledged to somewhat augment their funding post-2012.

Under the ADP track, China, India and other developing countries again tried to introduce the CBDR principle explicitly into the ADP framing, which the US and others had objected to include in the mandate.133 The COP decided to establish a one-year work programme to think through the application of the UNFCCC principles.134 The COP also stated that the ADP should consider “elements for a draft text” for the new agreement no later than COP20, “with a view to making available a negotiating text before May 2015”.135

4.4.2 Assessment

Despite President Barack Obama’s re-election, the US was once again less than helpful in moving ahead, declining any proposal to increase their emission reduction targets or to commit to new funding.136 The EU is similarly to blame for a lack of progress on this score, since the traditional frontrunner arrived at Doha with a reduction objective it had basically already met, with no joint funding commitment, and with divergent positions among the EU member states on various issues.137 With the industrialised world unwilling to increase their targets or to improve on funding, there was no incentive for the likes of China or India to better their voluntary emission reduction goals.138

Observers warn that the outcome of COP18 was even more modest than would have been necessary. Kyoto 2 will be a far cry from Kyoto 1 in terms to emission reductions: under the original Kyoto, all industrialised countries (39 at the time) – representing more than 55% of all global emissions – committed to reducing those emissions. With Canada having withdrawn from the treaty entirely, and Japan and Russia declining to sign up to Kyoto 2, this left the EU27, plus Australia (subject to conditions), Belarus, Iceland, Kazakhstan, New Zealand (possibly), Norway, and the Ukraine as members139 – representing only 14% of global emissions. Also noteworthy is that, the 2020 target of the largest party (the EU) had almost already been met.140 Moreover, the overall emission reduction to be achieved under Kyoto 2 will be approximately 18% by 2020 from 1990 levels and, hence, significantly less than the 25-40% range recommended by the IPCC.141 The net result is that Doha left the world firmly on track to 4°C or more of warming by 2100.142

In terms of the UNFCCC track, mitigation ambitions remained low. As expected, funding proved to be the most difficult issue to resolve in Doha. There was no joint commitment by Annex I parties in terms of mid-term funding from 2013 to 2020. The relevant decision simply “urges”, “invites” and “encourages”. Annex I parties to increase their funding, but when their “financial circumstance permit”.143

Yet again, Doha also produced some positive results, as follows:

Its main objective was to streamline the complex, multi-track negotiating process. The achievement in reducing the overall negotiations down to one unique track from 2013 onwards should not be underestimated:144 it allows Parties to concentrate on the discussions at hand, and frees up time and resources for Parties to the UNFCCC.145 As for the level-of-ambition discussion, there remains hope. Workstream 2 under the ADP, which was instituted to increase pre-2020 ambitions of the Parties, and the review of the CP2 states parties’ targets envisaged between 2013 and 2015, provide the tools for jump-starting mitigation efforts.146

The idea to prepare for setting up a kind of ‘loss and damage’ instrument at the COP19 in 2013 is a major achievement for LDCs, particularly for those most vulnerable to the long-term impacts of global warming. 147 Where mitigation and adaptation fail, people may suffer damages to their assets and health due to global warming. Yet, industrialised countries, notably the US, remain extremely wary of such a legal mechanism, fearing that, as traditionally high emitters, they may be held liable for damages of potentially unlimited economic value whose attribution to global warming may still be unclear.148

4.5 COP19, Warsaw, Poland, 2013

4.5.1 Outcome

The COP 19 presented the midpoint in the round of negotiations initiated in Durban in 2011. Accordingly, the key objective of this COP was to identify a path for the remaining two years of the so-called Durban Platform.

The Warsaw COP Decisions invite the Parties to submit intended nationally determined contributions (INDC) to the 2015 agreement toward achieving the 2°C goal of the UNFCCC. In doing so, Parties carefully evaded any statement as to the legal nature of these contributions. The INDCs ought to be submitted well in advance of the Paris conference by “the first quarter of 2015 for the Parties who are ready to do so” in a manner that facilitates the transparency and the understanding of these INDCs. However, the Parties were unable to decide on what to include in their INDCs.

Furthermore, the Parties agreed in Warsaw to “further elaborate… elements for a draft negotiating text” beginning at their first meeting in 2014.149 These elements include the usual list of issues, non-exhaustive though, including mitigation, adaptation, finance, technology and capacity building. A draft text should be ready by May 2015, so substantive progress will be essential in 2014 and ideally before COP20 in Peru.

With a view to the Green Climate Fund and the underlying pledge to mobilise USD 100 billion yearly by 2020, developing countries had requested to identify an intermediate goal of $70 billion by 2016, but failed to obtain an agreement in Warsaw. Developed countries only concurred to new biennial reports outlining their ideas for ramping up their adaptation finance.

SIS and other particular vulnerable nations were insisting ever louder on a reimbursement for unavoidable loss and damages from global warming. However, in light of the vigorous opposition in particular by the US to any form of compensation, Parties could only agree on a new tool (Warsaw International Mechanism for Loss and Damages) in order to share information and best practice and explore ideas on how best to help those countries in question.

The Parties did however make some progress with regard to MRV (by agreeing on the composition, modalities and procedure of the technical experts tasked with looking at the new biennial reports) as well as concerning REDD+.

4.5.2 Assessment

The COP19 took place in a rather emotional atmosphere overshadowed by the Typhoon Haiyan creating havoc in the Philippines. The declaration from Japan to reduce its emission target from 25% to just 3.5% due to Fukushima, and wearisome negotiating strategies from Australia created further tension during the meeting.150

Observers concur that substantively the Warsaw Conference was the least fruitful in years, in particular when compared to Cancun, Durban and Doha; the progress achieved in Poland was mainly procedural.151 While Parties managed to define a pre-Paris process by setting a loose timeframe for proposing the INDC ahead of the Paris meeting, they carefully evaded prejudging the ultimate form of the new agreement.

Mostly, the COP 19 illustrated the enormous gap still to be covered on key issues, i.e. the legal form of a new agreement and the differentiation between Annex I and Non-Annex country obligations. Then again, the meeting did expose shifts in countries historic positioning: The US and the EU appeared to work more closely together than in the past, while G77 and China exhibited a growing rift, with some of the developing countries showing greater flexibility than many of the BASIC group countries.152

Climate funding was and is one of the key issues of the fight against global warming. The best that could perhaps be said about the funding discussion during the meeting is that Parties have kept the talks alive for next year.153 Notwithstanding new funding commitments for REDD+ and increased funding for the Kyoto Protocol’s Adaptation Fund (US$100 million), countries remain as alienated as ever on the topic of funding. Regarding the damage and loss issue, failure was not an option for either side which is why the outcome from Warsaw is one of compromise. Although the Parties managed to establish a new loss and damage tool there is no mentioning of any form of monetary compensation.154

4.6 COP20, Lima, Peru, 2014

4.6.1 Outcome

After the usual delay, the Parties agreed on the Lima Call for Action.

The discussion within the Durban Platform centred around two documents, i.e. a paper summarizing “elements for a draft negotiating text” of the Paris agreement as well as a decision describing the pre-Paris process.

The core issue of the elements paper which grew up to 39 pages during the conference was its legal status: As many Parties were opposed to the idea of its exclusive character, the paper now includes a footnote according to which the elements reflect work in progress and do not preclude new proposals from 2015.155

It was the second documents that proved much more contentious: e.g. Parties were unable to agree on the precise scope of their INDGs owing to which the decision only invites Parties to consider including adaptation elements. While the Parties agreed on upfront information which they have to submit on their INDGs, including quantifiable information on the timeline, range and coverage, this information no longer “shall” be provide but “may”, thus rendering it voluntary. A major controversy related once again to the question of differentiation between Annex I countries and Non-Annex 1 countries. In the end, the decision simply repeated the CBDR principle with a reference to “different national circumstances”, echoing the joint declaration of the US/China.

During Lima, pledges for the Green Climate Fund reached the very important informal target of more than USD 10 billion while China together with other developing countries launched a new South-South Fund.156 Developing countries again failed to secure a commitment by developing countries for intermediary goal toward the USD 100 billion a year to be mobilised as from 2020. Regarding the newly create “Loss and Damage” tool, the Parties agreed at least on an initial two year work plan.

4.6.2 Assessment

Many observers of the UN climate process expected that Lima would benefit from the momentum built up over the year in particular the ground-shifting announcement of the US and China. 157 Yet, Lima did only just enough to keep the process alive and failed more or less to resolve the tasks it was supposed to do in order to prepare the COP21 in Paris 2015.158 A great deal of work lays ahead for the negotiators, requiring early high-level intervention by Government leaders, a joint understanding of how to define success as well as some pragmatism from outside.159

Regarding the draft negotiation text, there are two alternatives for every substantive point, and in some cases many more options. The objective for negotiators between Lima and Paris is to reduce, ideally eliminate these options in order to present a draft text which is NOT a Copenhagen-style text of 200 pages. 160 Eliminating the options, however, will be a monumental task although there are strong majorities on certain issues, e.g. a ‘net-zero’ emissions target by 2050.

Concerning the INDCs, the Lima meeting was tasked with providing guidance on the its scope, what kind of information countries would have to include to enable a review of the INDCs, whether there would be an international review of the INDCs prior to the COP21 and what this assessment would look like. Negotiators did complete only very few of those tasks because the usual north-south quarrel between industrialised and developing countries came once again to the fore: ultimately, the Lima decisions only “invite” Parties to consider including adaptation in their INDCs. Worse, the decisions contains no more than an optional list of very basic up-front information which countries “may” include in their INDCs thus failing to define a minimum level of common information to be provided.161 Despite this lacuna, the UNFCCC secretariat was mandated with the daunting mission to combine all INDCs into an aggregate target by October 2015. More importantly, the Parties could not agree on a formal ex-ante review of INDCs prior to the COP21 which disappointed many observers.162 Then again, the Parties agreed to outlaw backsliding of countries, i.e. their INDCs to the Paris agreement need to mark a progression beyond their current undertakings which is an important leap forward for the upcoming negotiations.163

5 Ahead of COP 21, Paris, France, 2015

The objective of the 2015 climate deal is to create the prerequisites for an effective international response to address global warming over the long term. All observers underline that for the new climate deal to be effective broad participation as well as a high level of ambition is required.164

The Durban Platform under which the negotiations are taking place since 2011 is mandated to come up with a new global climate agreement on the basis of the UNFCCC. Apart from timing issues, i.e. that the negotiations are to terminate in 2015 and that the outcome is to be implemented by 2020 the ADP formulates only very general parameters for the negotiations:

(i) in terms of legal form, it is clear that the ADP does not necessarily require a binding legal agreement such as an international treaty or a protocol.165 The third possible outcome under the ADP – an agreed outcome of legal force - remains less clear and open to interpretation. (ii) The ADP is entirely quiet about whether the Paris agreement should consist of one agreement or a package deal. 166 Nor does the ADP describes the legal relationship of the new instrument to Kyoto; (iii) With regard to substance, the ADP underlines the need to include all the familiar issues, i.e. mitigation, adaptation, funding, capacity-building while leaving it wholly up to the Parties to decide how they want to tackle these issues. Very important however, in contrast t Kyoto the ADP calls for the new instrument to be applicable to all Parties by deliberately omitting any reference to equity or the CBRD principle.167 (iv) At last the ADP is mute as to whether Parties ought to follow a Kyoto like top-down approach with internationally negotiated emission targets or a UNFCCC/Copenhagen like bottom up approach with nationally set voluntary contributions.

The following elements are being discussed:

• Hybrid agreement

In light of the Warsaw COP 19/Lima COP 20 decisions, today many observers argue in favour of a more hybrid form of climate governance, mixing top-down and bottom-up elements in order to secure wider participation and higher ambition.168 There is growing consensus that in order to come up with a robust long-term new instrument, flexibility needs to be introduced at party level, i.e. the way in which the mitigation contributions by the Parties are established, accounted for and tracked down. Moreover, including flexibility at the structural level will ensure that the new instrument remains ambitious over its life-time, e.g. by establishing a process to regularly update mitigation contributions.169 A hybrid agreement would give Parties the flexibility in defining and/or updating their mitigation contributions while on the other hand limiting this flexibility though internationally agreed rules on accounting and transparency.170 Ideally this new agreement could built on the success of the Copenhagen Accord in terms of participation (covering 80% of global emissions as compared to 14% under Kyoto) while overcoming its key weakness in terms of ambition, i.e. the lack of consistency of the mitigation contributions with the below 2°C range of emissions pathways. Observers believe that a hybrid agreement with mitigation contributions which are determined at national (instead of international) level should allow the US and China to participate in the new agreement.

• Long-term goal

As an agreement based on the UNFCCC, the new climate instrument would need to be consistent with the ultimate goal of the latter, which is the prevention of the dangerous anthropogenic interference with the climate system. This ultimate goal of the UNFCCC has been further elaborated at the COP 16 in Mexico, where Parties agreed to limit GHG emissions so as to hold the increase in temperature below 2°C above pre-industrial levels. Various experts recommend that the 2°C temperature goal agreed in Cancun should be supplemented by a net zero emission objective. With a net zero emission objective, Parties commit to reduce net global GHG emissions by 2050 or, at the latest, in the 2nd half of this century.171 The zero net emission goal is technically achievable would provide a clear signal that unprecedented levels of investment will be required. 172 Yet, a zero net objective is sufficiently flexible to accommodate nationally defined mitigation contributions because it does not impose specific targets/instruments for individual Parties.173

• Mitigation

- Intended Nationally Determined Contributions (INDCs)

The Warsaw COP 19 decisions invites all Parties to submit nationally determined mitigation contribution (INDCs) in order to to ultimately reach the 2°C temperature/the net zero emission goals without identifying the legal character of those INDCs yet. There is a growing consensus among observers that those INDCs themselves should not be internationally legally binding, which would in particular allow the US to participate in the new climate deal but Parties have yet to take a formal decision.174 This invitation to put forward INDCs mirrors the Cancun Agreement and introduces a strong bottom-up element. In line with the hybrid character of the new agreement, Parties would be free to define the type of their mitigation contributions, be it GHG mitigation goals175 or policy interventions 176, as well as their scope (economy-wide or not).

- Up-front information

The same decision however introduces a top-down element by requesting the ADP to identify up-front information that Parties should offer in order to facilitate clarity, transparency and understanding between the Parties. Observers highlight that, without specific information, it will be impossible to understand the ambition and the equity of the individual INDC.177 With no detailed information at hand INDCs cannot be compared between Parties and as a result thereof, the global ambition cannot be measured.178 It is hoped that information provides for much needed transparency which ideally leads to higher ambitions and might re-build faith between the countries. Yet, according to the Lima COP 20 decisions, Parties are no longer obliged to give the information but may do so. Worse, the reporting is limited to basic parameters, similar to those used by Annex I parties to explain their mitigation targets under Cancun including, inter alia, the reference point (including, as appropriate, a base year), time frames and/or periods for implementation, scope and coverage, and methodologies. For now, Parties do not have to justify the level of ambition of their INDC nor show how the contribution is equitable179; reporting obligations which many experts however want to see in the final text.

- Timeframe

Parties have yet to decide about a common timeframe for the INDCs. Timeframes have been used before in Kyoto, where Parties agreed to commitment periods; this differs from the Cancun Agreement which gave instead an end date (2020) as a result of which some emission offers covered one year only (e.g. 2020) while others covered multiple years, which rendered their evaluation unnecessary difficult. Observers are discussing various timeframes ranging from 4-5 to 10 or more years but suggest a minimum of 4 years.180 Mitigation offers should be upheld at all times with no gaps between the timeframes. Some experts have put forward the idea as to whether the agreement could oblige the Parties to increase the level of ambition the INDCs at the expiry of a given timeframe until the long-term goals are realised.181 This would prevent the gap issue of Kyoto where after the first contribution period new targets had to be re-negotiated ab initio which undermined the sustainability of the international mitigation efforts as Parties were able to lower their ambition from the first to the next contribution period.182

- Update

Observers underline that a Party should be entitled to increase the ambition of its INDC at any time through a simplified procedure without the need for formal ratification, thus implying that upgrades are deemed to be the norm, and encouraging Parties to take on ambitious goals.183 In the opposite case, i.e. when a Party is thinking of downgrading its ambition a formal consultation process would have to be undertaken, obliging the Party to explain the basis and rational for this downward update.184 However, letting Parties to downgrade their INDCs could incentivise participation and hedge the risk of Parties withdrawing from the agreement.185

Besides, observers urge to include a trigger mechanism allowing a Party to reconsider its INDCs in the case of natural disasters, political upheaval or sudden economic crises.186

• Differentiation

The issue of differentiation has overshadowed the COP negotiations from the very beginning in 1992 and is again of key importance for the new climate deal. While the ADP mandate omits any reference to equity or the CBDR principle, it is clear that this question must be tackled due to the fact that the new agreement should be consistent with the UNFCCC. The Lima COP decisions do again contain a reference to the CBDR but evade mentioning the traditional categorisation of the Parties in two annexes.187 What is more, based on the Lima decision the CBDR now speaks about taking into account individual capabilities of the Parties, which leaves the door options for differentiated responsibilities of the most vulnerable countries (ie LDCs) but could imply that rapidly industrialising countries such as the BASIC group might no longer be able to vindicate CBDR principle.

Quite many experts today oppose the idea of categorisation of the Parties in different annexes as it was done under the UNFCCC or Kyoto because it no longer mirrors the reality on the ground which has substantially evolved over the last years: some of the rapidly industrialising countries are today emitting such high levels of GHG (in absolute terms) that their mitigation contributions are deemed indispensable for the success of the 2015 agreement. A new “firewall” between Parties as it was imposed under Kyoto is quickly obsolete and a transition from Non-Annex I party to Annex I party is impossible to obtain under the existing UNFCCC decision-making rules. More importantly the very idea of a hybrid agreement under which every Party is free to set its own tailor-made mitigation contributions, should render groups of Parties unnecessary.188 Of course the CBDR principles will continue to have an important role to play for other topics of the 2015 agreement such as adaptation and climate finance. Moreover, in order to underline the importance of equity in the 2015 agreement, observers want each party to come forward with information on how their mitigation offer takes equity into consideration by describing the benchmarks it used in assessing equity.189 Ideally Parties would have to report against international benchmarks covering for instances emission responsibilities, capabilities, vulnerability, development need etc.

• Review

As outlined before, a balance will have to be struck in the 2015 agreement between flexible INDCs and the need for international oversight concerning their implementation. Based on the Warsaw COP 19 decision which demands that Parties submit their INDCs well ahead of the Paris meeting, observers distinguish between up to three different kind of reviews190:

The objective of these reviews is always the same, i.e. to provide all Parties with comprehensible information about the ambition level of the individual INDC and the national circumstances that have guided the offer so as to enable the required comparison between Parties in order to verify whether the offers are in line with 2°C temperature goal.192

The agreement would have to deal with various organisational questions including193: (i) As to the parties that have to undergo these reviews, only LDC and SIS should be excepted from the review obligation; (ii) As to stakeholder in the review, observers discuss combining independent technical reviews with a party-driven consultation, while granting wider stakeholder such as NGOs, IGO or business the opportunity to be heard194; (iii) As to the format, the 2015 agreement could build on one of the existing procedures (such as the ICA/IAR under the UNFCCC, the clarification workshops of the 2020 mitigation offers or the 2013-2015 long term goal review) or institute a new procedure.195

• Compliance

Observers highlight that the 2015 agreement must include some kind of compliance mechanism to evaluate whether the Parties have indeed satisfied their INDCs and impose fines if they have not. As strong compliance mechanism could play an important role in assuring that Parties implement their INDCs independent of whether these INDCs are legally binding or not.196 Observers agree that the 2015 agreement should build on the Kyoto compliance instruments by retaining the two existing tracks of enforcement and facilitation, but adjust the mandate by for instances transferring the compliance body of the CMP into the COP.197 Besides, the new agreement ought to identify the scope of the compliance tool, i.e. as to whether the instrument in question applies to all Parties (or only to a few larger emitters) and to the whole text of the agreement or just some rules.198

• Adaptation

Traditionally, adaptation has drawn much less political interest and fewer institutional resources under the UNFCCC framework. Yet, according to the latest findings of the IPCCC, without urgent action, global warming will bring severe and irreversible impact on all people. The 2015 agreement must hence deliver the clear message that adaptation is as important as emission reduction and must be treated with equal seriousness.

Based on the Geneva negotiation text issued in 2015, observers discuss the introduction of adaptation goals (at international or national level), which could be seen as a way to emulate the mitigation-related text on INDCs.199 As there is no objective quantitative unit yet to meaningful present adaptation, most experts favour qualitative goals, while recognising that there could be significant challenges in implementing even these latter goals.200

To strengthen adaptation efforts, the Lima COP 19 decisions urge the Parties to include an adaptation component in their INDCs and outlined various features of this component. The idea is to overcome existing barriers to successful adaptation by improving on institutional, planning, finance, and reporting issues: (i) Vis-à-vis the institutional framework, observer indicate that the new agreement has a key role to play in ensuring that the various adaptation institutions that have been established over time under Nairobi Work Programme / CAF have a robust mandate and are better coordinated.201 New institutional options could include a subsidiary body for adaptation, an adaptation registry or an international clearing house.202 (ii) On the subject of planning, experts discuss as to whether the 2015 agreement could foresee that all Parties must come up with NAPs by a target date and update them in regular interval of 4 to 8 year, thus establishing the NAP as main adaptation vehicle. By doing so one should however keep in mind that the NAP process was originally launched to reduce the documentation burden and to introduce greater levels of flexibility based on the NAPA experience. 203 (iii) Adaptation finance is key to every round of negotiation: Experts recommend that the 2015 agreement should upgrade the newly created Warsaw International Mechanism for Loss and Damage to become the main platform for the international cooperation in this field beyond 2016.204

• Funding

Funding has been and always will be an essential issue of the international climate negotiations and it will again take centre stage at the Paris meeting.

At COP15 in Copenhagen in 2009, industrialised countries vowed to grant new and additional resources of US$30 billion for the period of 2010 to 2012, and to mobilise long-term funding together with developing countries of US$100 billion a year by 2020. The informal assurance was later incorporated into the decisions of Mexico COP16 in 2010 where the Parties reaffirmed that funding for adaptation would be prioritised for the most vulnerable developing countries, namely LDCs, SIDSs and Africa. The COP17 in Durban in 2011 saw the effective launch of the Green Climate Fund as a new operating entity of the UNFCCC’s financial mechanism which could be operationalised just before the Lima COP20. Unfortunately though, Parties at the Warsaw COP19 in 2013 and the Lima COP 20 in 2014 were unable to make much headway, except for the creation of the Warsaw Loss and Damage Mechanism, with the consequence the question of medium- and long-term funding remains unresolved and needs urgent attention in the 2015 climate deal.

The challenges are numerous: 205

Observers discuss various objectives and means for reach these objectives for the new climate such as: (i) to boost existing finance-related commitments by including “Parties that are able to do so” (next to Annex I countries) and by agreeing on quantified levels of finance as percentage of GPD; (ii) to increase available resources by mobilising non-Government funding and promoting South-South funding; (iii) to improve existing funding institutions and the coordination/harmonisation among them; (iv) to simplify the access to funding in particular for the most vulnerable countries by improving the transparency of the UNFCCC funding tools through periodical reviews and better guidance.208

6 Global Warming and Individual Countries

For the remainder of this paper we will investigate what types of instruments individual countries use to address in particular the question of mitigation and funding. For this exercise we will assess three countries which together account for more than 65% of global GHG emissions, two of which are developed countries namely the EU, which is a Kyoto Annex I party (and third largest emitter); and the US, which has never ratified Kyoto and one developing country, a member of the BASIC group of NICs, namely China, as a Non-Annex I party (and the highest current emitter of GHGs).

First we will look into what kind of GHG mitigation reduction targets (if any) are being applied. As for mitigation goals, observers usually distinguish the following types of goals:

While describing past mitigations goals, our assessment will focus on the INDC to be submitted ahead of the Paris COP 21.

Secondly, we will briefly enquire what kinds of climate policy instruments are being used next to mitigation goals: in line with Kuik et al.209, we will illustrate as to whether the country in question prefers:

6.1 The European Union

The EU, representing 28 member states, with a combined output of 4,050 Mt of carbon dioxide in 2010, is the world’s third largest GHG emitter after China and the US, accounting for 12.3% of global carbon dioxide emissions, and having shown an increase of 3% from 2009 (and a decrease of 5% from 1990).210

The EU is a party to the UNFCCC since 1993 and the Kyoto Protocol since 2002. Unlike the US, the EU follows mainly a regulatory climate policy approach. This top-down approach is increasingly complemented by market-based instruments.

6.1.1 Mitigation Policy

6.1.1.1 GHG Mitigation Goals

For the first commitment period under Kyoto between 2008 and 2012, the 15 old EU member states (EU-15) adopted an emission reduction goal of 8%, compared with its 1990 emission levels211, which is a typical base year mitigation goal, expressed in GHG metrics. As this goal was negotiated within the framework of Kyoto, this QERL is legally binding upon the EU and its members.

Vis-à-vis the second commitment period of Kyoto from 2013 until 2020, the EU took the decision to reduce its GHG emissions by at least 20% by 2020 compared with its 1990 levels212, again a base year goal. Apart from this mitigation goal, the EU adopted two further goals, which are expressed in non GHG metrics, according to which EU members are obliged (i) to generate 20% of their energy from renewables and (ii) to increase by 20% the energy efficiency in the EU, both by 2020. With regard to the long-term ambition of keeping the global temperature increase to below 2°C, the Climate and Energy Package contains an EU objective of reducing domestic GHG emissions by 80-95% below 1990 levels by 2050.213

In order to prepare for INDCs in view of the new climate deal, the EU adopted on 23 October 2014 the 2030 Climate and Energy Framework which sets the following goals for 2030:

The INDC submitted by the EU in March 2015 confirms the mitigation goals of the 2030 Climate and Energy Package.

6.1.1.2 Policy Instruments

The EU mainly uses legal instruments, which directly address climate issues and hence pursues a ‘front door’ method: the Climate and Energy Package which was launched in 2000 serves as an overarching EU climate policy tool and is now running in its 3rd phase (2015-2030).

In order to achieve its mitigation goals, the EU uses as a whole variety of command & control instruments including, inter alia:214

This regulatory toolkit is accompanied by market based instruments central to which is the trade in GHG emission permits, i.e. the EU Emissions Trading System (EU ETS) launched in 2005, which now in its third trading phase, running till 2020. 221

The 2005 Directive introduced a mandatory ‘cap and trade’ regime. According to this regime, a GHG emission limit for the whole ETS is fixed, and for each year a certain quantity (a ‘cap’) of GHG emission allowances is granted to EU members, who in turn distribute (‘trade’) these via public sale to the 10,800 installations throughout the bloc participating in the scheme.222 If an installation emits more than the allowances it has obtained, it has to buy unused allowances from other installations under the ETS.223 In 2009, a revised ETS directive was adopted224 to further improve the EU scheme for a third phase running from 2013 to 2020. While the EU ETS is to be commended for its pioneering role, being the first carbon trading scheme ever and the largest until today, observers outline a number of flaws:

At a very fundamental level, the discussion is still-ongoing as to whether a carbon trading scheme is indeed more effective than carbon taxes in terms of reducing GHG emissions.225 Many handicaps of the EU-ETS have to do with procedural questions: The initial EU-ETS

Directive of 2005 failed to include harmonised rules on the distribution of allowances throughout the EU, strict compliance instruments, and any kind of linkage between the EU ETS and other carbon trading regimes in third countries.226 One major weakness related to the scope owing to the fact that the EU-ETS, in phase II, only covered 40% of all EU GHG emissions, notably excluding the transport sector, which was an important omission.227 Some of these shortcomings have been corrected when the UE-ETS entered phase III in 2009: e.g the coverage of the ETS was broadened in order to include carbon dioxide emissions from the chemical industry and the aviation sector as well as certain other GHGs such as nitrous oxide. Moreover, caps are to be set at EU level and allocation rules harmonised across the EU.

In spite of these amendments in 2009 the EU-ETS has been facing its most important challenge to date over the past five years: The possibility for EU Members of transferring unused allowances from phase II into phase III together with the global economic crisis signifies that the regime is now flooded with allowances (equivalent to emissions of around 2,000 million tons CO2) due to which the price of allowances drop markedly from EUR 63 in January 2008 to a record-low EUR 4.50 in July 2013 with the consequence that the EU-ETS, for now, is having virtually no impact whatsoever on GHG emissions reductions.228 In order to improve the functioning and to restore the credibility of the EU-ETS, the EU adopted a number of measures at in 2014 including the back-loading of the auctioning of 900 million tons of emission allowances within phase III to 2019/2020 or the launch of a market stability reserve (MSR) in the trading phase IV after 2020 (which now is meant to be moved the MSR forward to the 1st January 2019);229 yet it remains to be seen if those measures have a significant impact on the CO2 price.230

As to the other key market-based instrument usually discussed by observers, namely carbon taxes, notably, quite a few EU members have introduced some form of eco-taxation;231 however, there is no EU-wide carbon tax as yet. However, proposals for a carbon taxation dispensation have been floated since 1999, prompting the Commission in 2010 to propose the amendment of the Energy Taxation Directive of 2003 which lays down common rules for the taxation of energy products.232 The proposal aimed to introduce a carbon tax mainly for those sectors not yet included in the ETS233 but failed to reach the necessary majority in the EU Council.

The EU-ETS is accompanied by technology support and other financial incentives which are based on the following measures: The Energy Review of 2008, which stress that the EU’s climate goals for 2020 will necessitate an overhaul of EU energy arrangements, looks at the challenges facing the bloc between 2020 and 2050 and formulates an EU Strategic Energy Plan.234 This Plan tries to speed up the development of innovative, inexpensive, low-carbon technologies, and is built on a wide-ranging research and development scheme. 235 The initiative is complemented by the European Energy Programme for Recovery, which allocated €1 billion for carbon capture and storage installations and €50 million for offshore wind installations.236 In 2011, the Commission proposed its Roadmap for 2050, which is based on the view that innovative ideas are needed to scale up investments in energy, transport, industry and information technologies and that more focus is necessary to combat energy inefficiency.237

6.1.2 Funding for Developing Countries

As an Annex I party under the UNFCCC, the EU is obliged to assist developing countries to tackle global warming, both in respect of reducing GHG emissions and in adapting to the unavoidable impacts of climate change.

Before COP15 in Denmark in 2009, the Commission adopted a communication Stepping Up International Climate Finance: A European Blueprint for the Copenhagen deal, recognising that supporting developing countries was vital to reaching an ambitious outcome at COP15. The blueprint identified that, by 2020, developing countries would incur yearly costs of €100 billion to finance their mitigation and adaption activities, and proposed that industrialised nations and larger developing countries grant them funding to the tune of some €22-50 billion a year, with the remaining €50 billion coming from national sources and expanded international carbon dioxide markets.238

At COP15 in Denmark in 2009 and COP16 in Mexico in 2010, the EU and other industrialised countries pledged to jointly grant nearly US$30 billion from 2010 to 2012 to kick-start the scheme, and offered to mobilise US$100 billion a year by 2020. Despite budgetary constraints, the EU did, in fact, manage to award €2.34 billion in 2010 as well as in 2011, bringing its contribution to €4.68 billion, or 65% of the overall pledge for 2010-2012, most of which was deployed through existing instruments.239

With the assistance of the EU, COP17 in Durban in 2011 launched the Green Climate Fund, the new funding instrument intended to serve as the key long-term financing vehicle. However, Parties were unable to reach consensus on where the money for the Fund would come from, in either the medium (beyond the fast-start resources) or long term.240

In recent years, three funding mechanisms have been set up by the Commission, i.e. the Global Climate Change Alliance, the Global Energy Efficiency and Renewable Energy Fund, and the Climate Change Windows, pooling more than €1.5 billion in grants from the EU budget and EU members’ national budgets. These tools are estimated to leverage around €14 billion in climate finance by 2013.241

6.2 The United States of America

The US, with its output of 5,250 Mt of carbon dioxide in 2010 alone, is the world’s second largest GHG emitter after China and ahead of the EU in third position. The US accounts for 15.9% of global carbon dioxide emissions, showing an increase of 4% from 2009 (and an increase of 5% from 1990).242

While the US became a Party to the UNFCCC in 1992, it refused to ratify Kyoto in 2003, making it the only major industrialised country – and the world’s largest GHG emitter at the time – to do so.

6.2.1 Mitigation Policy

6.2.1.1 Mitigation Targets?

Since the US decided again ratifying Kyoto, it has never committed to internationally binding mitigation targets, as opposed to the EU. Under the Copenhagen Accord of 2009, the US took on the voluntary goal of reducing its GHG emissions by 17% below 2005 levels, a base year goal. With regard to the long-term vision of keeping global warming at 2°C, at COP15 the US Government indicated that it sought to voluntarily reduce its GHG emissions by 85% by 2050, compared with its 2005 levels. In order to address the lack of binding mitigation targets, individual US states have however introduced obligatory GHG reduction objectives over the past years.243

Concerning the INDCs to be provided for the COP21, in November 2014, the US together with China made a joint announcement in which both countries reaffirmed the UNFCCC goal of limiting total global warming to 2°C, underlined their intention to reach a new climate deal and to work together to increase ambition over time. The US indicated that it intends to achieve a target of reducing its GHG emissions by 26-28% below its 2005 level in 2025 and to make best efforts to reduce its emissions by 28%. As before this is a base year goal. On 31 March 2015, the US submitted its INDC, confirming the public announcement of November 2014.

6.2.1.2 Policy Instruments

Unlike the EU, the US rather pursues a back-door approach by striving to attain its emission reductions goals through indirect means based upon as the Clean Air Act (CAA).

At national level, the US has been so far unable (or unwilling) to adopt legal instruments which directly address climate issues. In contrast to the earlier Bush Administration, the Obama Administration made an all-inclusive obligatory Climate Bill one of its legislative priorities during its first term. However, while the so-called American Clean Energy and Security (ACES) Bill did pass the House of Representatives in June 2009,244 it was defeated in the Senate in June 2010.245 Since the failure of the ACES Bill, the Clean Air Act has become the main legal instruments for an emerging national climate policy.246 On 25 June 2013, President Obama announced a Climate Action Plan, outlining 75 goals in mainly three fields, including the reduction of GHG emissions, adaptation to the impacts of global warming and negotiations of a new international climate deal.247 As Congress is unlikely to adopt any climate legislation soon, the Climate Action Plan depends first and foremost on executive powers of the Obama Administration under existing laws such as the CAA.

The national climate policy in the US is essentially market-driven by using financial support tools to improve on low-carbon technology and renewables. The main policy instrument is the American Recovery and Reinvestment Act (ARRA) of 2009, through which the US Government offers subsidies and tax incentives of more than US$90 billion for investment in green energy technologies, including:248

Another very important incentive scheme is the Energy Improvement and Extension Act adopted in 2008, which offers a set of incentives for renewable energy production, clean coal and carbon sequestration, as well as energy-efficient transportation.249

Regarding the other incentive-based instrument such as cap and trade, while there is no national legislation in place, states and region have enacted legal instruments and policy measures in this field. In 2013, California launched a cap-and-trade programme, which second in in size only to the EU-ETS in terms of emissions covered, applies to large electricity generators and industrial plants and encompasses around 85% of the state’s total GHG.250 It is the first multi-sector cap & trade instrument in North Amerika building on lessons drawn from the northeast Regional Greenhouse Gas Initiative (RGGI) and the EU-ETS. The scheme will reduce GHG emission from plants by more than 16% between 2013 and 2020, thus making it a key element of the state’s obligatory emission objective to reduce emissions to 1990 level by 2020.251 The RGGI which was launched in 2009 as the first-ever obligatory cap-and-trade programme in the US involves 10 north-east US states.252 Between 2009 and 2013, GHG emissions from power plants in the RGGI regions went down by 45% as a consequence of fuel switching to natural gas, improved use of renewables and a consumption reduction.253

With regard to carbon taxes, there is a myriad of levies on fossil fuels and other environmental taxes both at national as well as at state level including motor fuel excise taxes or excise taxes on coal as well as a variety of pollution fees, hazardous waste charges, tire disposal fees, and other assorted charges254; yet, while a broad carbon tax covering CO2 and other GHGs as it is used in other countries and regions such as Australia, Sweden as well as British Columbia (Canada) is being discussed by various US economists in the past years, these discussions have thus far not led to a concrete proposal by EPA.255

This market-based toolkit has been complemented over the past five years by some command & control instruments which are designed and implemented by the Environmental Protection Agency (EPA), based on the Clean Air Act (CAA). The CAA formulates the broad authority of the EPA to develop regulations to mitigate harm from air pollution. 256 Regulatory instrument issued (or at least proposed to be issued) by EPA include, inter alia:257

One of the keystones of the Climate Action Plan is the Clean Power Plan of EPA which was launched on 3 August 2015 covers GHG emission from fossil fuel and natural gas power plants. 258 That same day EPA also issued intermediary and final emission performance standards for new, modified or existing power plants. The idea behind is to impose performance standard (in terms of rate- or mass-based goals) for each state while the latter are free to choose the instruments in order to implement these standards.259 For this, the states must develop and submit implementation plans by 2016, ensuring that the power plants in their state achieve these performance standards between 2022 and 2030.

6.2.2 Funding for Developing Countries

As with the EU, the US is committed to helping developing countries in their mitigation and adaptation efforts. Since 1991, the US Agency for International Development (USAID) has included climate change funding mechanisms in its development funding, spending approximately US$2.6 billion on climate-related development programmes.260 However, in its evaluation of the Fourth US National Communication in 2009, the UNFCCC noted that US resources, which expressly target developing countries, in particular LCDs and SIDSs were modest.261 This is mainly due to the US’s ‘back door’ approach according to which climate goals are embedded in a wider development agenda.

Against this background, the Obama Administration passed the Consolidated Appropriations Act of 2010, which nearly tripled climate-related foreign assistance to over US$1 billion in 2010, including a first-ever US contribution of US$50 million to the Least Developed Country Fund and Special Climate Change Fund; a contribution of US$375 million to the World Bank-managed Climate Investment Funds; and substantially increased funding for the USAID climate programmes.262 At COP16 in Mexico in 2010, the US pledged to contribute US$1 billion between 2010 and 2012 in aid to reduce GHG emissions from deforestation, land degradation, and other activities.263

Furthermore, in 2004, the US’s Millennium Challenge Account (MCA) was launched. To date, agreements with 20 countries totalling nearly US$7.2 billion have been signed under the MCA.264

6.3 BASIC Group: China

China, with its output of 8,950 Mt of carbon dioxide in 2010 alone, is the world’s largest GHG emitter, accounting for 27.1% of global carbon dioxide emissions, showing an increase of 10% from 2009 (and of 257% from 1990).265 Coal constitutes 70% of China’s primary energy – more than twice the international average.266

China employs mainly a ‘stick’ climate policy approach through a permit and tax system using various direct regulations, supplemented by some market-based instruments. Like many other developing countries, China tries to achieve its climate goals indirectly, as side effects of a general development policy (the ‘back door’ approach).267

6.3.1 Mitigation Targets?

China has participated actively in the international climate negotiations since the beginning and has ratified the UNFCCC as well as the Kyoto Protocol. However, it is important to remember that China, as a Non-Annex 1 (developing) country, did not have to take on binding mitigation targets under Kyoto.268

For many years, China, together with India, followed a very rigid negotiation strategy at the various COPs, rejecting each and every attempt by other Parties to commit them to setting any kind of GHG emission reduction goal, while underlining the historical liability of the industrialised nations and its own development needs.269 It is only since the COP13 in Bali in 2007 that China is willing to take on a more proactive role in international climate negotiations.270 In November 2009, China announced its intention to voluntarily reduce the intensity of CO2 emissions per unit of GDP by 40-45% by 2020, compared with 2005 levels.271 In January 2010, for the first time ever, China took on a mitigation goal under the Copenhagen Accord to voluntarily reduce its GHG emissions intensity by up to 45% by 2020. As opposed to the EU or the US, China hence favours an emission intensity goal (as do most developing countries) which is however perceived by many observers as less stringent than mere emission goals.

While at the COP17 in Durban in 2011, China went as far as indicating its general willingness to reflect on adopting legally binding mitigation objectives272, it somewhat backpedalled in the next COPs where it led the “Coalition of Like Minded Developing Countries” which once again insist on having a strong differentiation between industrialised and developing countries in terms of their mitigation contributions. Let’s hence not forget that even though China has become the world’s largest emitter (and second largest economy in the world), it remains a developing country whose priorities focus on raising the standard of living and expanding infrastructure.

Just before the COP 20 in Lima, in November 2014, China together with the US made a joint announcement in which both countries reaffirmed the UNFCCC goal of limiting total global warming to 2°C, underlined their intention to reach a new climate deal and to work together to increase ambition over time.273 On top of its intensity goal under the Copenhagen Accord, China announced to non-GHG metrics mitigation objectives:

When submitting its INDC on June 2015, China confirmed the above statement but improved on the original carbon intensity goal:

6.3.2 Policy Instruments

With growing political attention focused on the impacts of global warming, China’s first National Report on Climate Change was issued in late 2006. In June 2007, China adopted a National Climate Change Programme, outlining a list of key measures until 2010.276 With this step, China became the first developing country to have an overarching climate policy strategy, hence employing a front-door policy approach.277

As it was to be expected China focuses on command & control instruments when dealing with climate issues: In order to achieve this voluntary mitigation goal, in March 2011, the current Twelfth Five-Year Plan (FYP12) was enacted which covers the years 2011-2015. FYP12 formulated, inter alia, three nationally binding goals for 2015 including:278

In order to implement the targets set out in FYP12, in July 2011 the Chinese Government issued a work plan under which the three national emission reduction targets were broken down by assigning obligatory overall energy consumption and specific CO2 emission reduction targets to the 28 Chinese provinces, with reductions ranging from 10% to 18%.279

Regulatory measures to achieve these provincial targets include inter alia:

Yet, over these last years China is increasingly showing an interest as to whether these command and control instruments can be supplemented with market-based instruments:

Under the FYP12, China announced its intention to gradually introduce provincial and regional voluntary carbon-trading schemes until 2015, by drawing on the experiences of international carbon-trading markets.282 In July 2011, the Chinese Government announced that it would launch pilot trading schemes in six provinces by 2013. By the end of April 2015, the overall trading volume of China’s pilot carbon markets amounted to 22.9 million tons CO2 with an individual price of RMB 34.3 per ton.283 China is now intending to inaugurate a nation-wide carbon trading system in 2017 to further the deployment of clean energy and raise income to invest in low carbon transformation at a national level.

Besides launching national carbon-trading scheme, China is discussing implementing a nationwide carbon tax since the release of the FYP12284 but notwithstanding various public announcements, it has not done so yet. Like the US China has adopted a number of environmental taxes however: starting in 2006, the China increased export taxes on energy intensive industries by limiting export tax discounts. Other tax measures discourage the use of fossil fuels and polluting vehicles.285 A national natural resource tax was introduced on crude oil and gas late in 2011.

Apart from carbon trading and carbon taxes, China has also increased its financial incentives over the last years in particular for the development of green energy technology.286 Inter alia, the renewable energy law provides direct Government subsidies, e.g. the national fund to foster renewable energy development, discounted lending and tax preferences for renewable energy projects while also guaranteeing feed-in-tariffs for certain types of renewable energy.287 More incentives have been offered to manufacturers aiming at encouraging the production of vehicles with low-fuel consumption, hybrid and electric vehicles.288 Other measures include the development and accelerated use of clean coal technology and unconventional gas-oil resources such as coal-bed gas and shale gas.

7 Concluding Remarks

Regardless of the new window of opportunity stemming from the idea of a hybrid agreement thus finally overcoming the top-down vs bottom up saga of past negotiations, the success of the Paris COP 2015 is far from certain, given the existing differences between the major GHG emitters – the BASIC group, the EU, and the US. Hence, some observers argue that the issue is not the format of the international negotiations process but the on-going lack of national political will in some countries to address global warming and climate change.289 In addition, when looking into the INDCs submitted so far ahead of Paris, experts point out that the mitigation contributions, to date, are in fact not enough to limit the temperature increase to 1.5°C or 2°C over the course of the 21st century.

 


1 OECD (2006:15-16).

2 Ibid:22.

3 Bothe (2003:240).

4 UNFCCC (2012a:1).

5 UNFCCC (2009a).

6 UNFCCC (2012b).

7 UNFCCC (2009b).

8 UNFCCC (2012b).

9 Article 22.1 UNFCCC.

10 Article 3.1 UNFCCC.

11 CISDL (2002:1-2).

12 Boisson de Chazourne (2008:2).

13 There is a sub-category of so-called Annex II parties, which consist of the OECD members of Annex I but not the economies in transition. Only these Annex II states parties are obliged to make funding available for Non-Annex I parties.

14 Article 4.3 UNFCCC.

15 Boisson de Chazourne (2008:4).

16 Hereinafter also ‘Kyoto’ or ‘the Protocol’.

17 UNFCCC (2012d).

18 Article 3.1 Kyoto Protocol.

19 This value includes reduction targets of 21% for Germany, 12.5% for the United Kingdom, and 0% for France, while Spain may increase its emissions by 15%.

20 Cf. http://unfccc.int/kyoto_protocol/items/3145.php; accessed 8 October 2012.

21 Article 12 Kyoto Protocol.

22 Hepburn (2009:412).

23 Article 6 Kyoto Protocol.

24 UNFCCC (2012g).

25 UNFCCC (2012f).

26 UNFCCC (2012e).

27 The IPCC defines ‘resilience’ as the ability of a social or ecological system to absorb disturbances while retaining the same basic structure and ways of functioning, the capacity for self-organisation, and the capacity to adapt to stress and change.

28 UNFCCC (2012e).

29 Helm (2009b:19).

30 Depledge / Yamin (2009:446).

31 Olmstead / Stavins (2006:1).

32 Helm (2009b:16).

33 NEAA (2012).

34 Ibid.

35 Ibid.

36 World Bank (2008:6).

37 Barrett (2009:62).

38 Ibid:61.

39 Gao (2007:7).

40 Gosh / Woods (2009:454).

41 Depledge / Yamin (2009:443).

42 Olmstead / Stavins (2010:2).

43 Ibid.

44 Barrett (2009:63); Aldy / Stavins (2009:8).

45 Gosh / Woods (2009:463).

46 UNFCCC (2005).

47 CCES (2007c:2).

48 UNFCCC (2012i).

49 Initial proposals for the BAP supported by the EU foresaw that developed countries would have to reduce GHG emissions by 25-40% below 1990 levels by 2020. Due to strong opposition from the US, but also Canada and Japan, the final decision only asks for “deep cuts in global emission”. See also TWN (2007).

50 BAP, clause 1(b)(i) and (ii).

51 UN-NGLS (2008:2).

52 BAP, clause 1(c)(i).

53 UN-NGLS (2008:3).

54 Hereinafter ‘Copenhagen’ or ‘Accord’.

55 Egenhofer / Giorgiev (2009:3).

56 Ibid.

57 Stavins / Stowe (2010:2).

58 Egenhofer / Giorgiev (2009:2).

59 Falkner et al. (2010:252).

60 Anderson (2009:2).

61 Cao (2010:3).

62 UBA (2010:5).

63 Diringer (2010a:1).

64 Sterk et al. (2011a:4).

65 Ibid.

66 Sterk et al. (2011b:5).

67 Ibid:6.

68 Sterk et al. (2012:5).

69 Falkner et al. (2011:252).

70 Ibid:253.

71 Ibid.

72 Egenhofer / Giorgiev (2009:3).

73 Diringer (2010b:2).

74 Ibid.

75 A ‘global climate deal strategy’ entails deriving a package deal with legally binding quantified targets on all the key issues – mitigation, adaptation and funding – and is universal in its application; see Falkner et al. (2010:256). This strategy was first used when the 1985 Vienna Convention on Ozone Layer Protection was negotiated, and it dominated international climate-related policy until Kyoto.

76 Falkner et al. (2010:256).

77 Bodansky et al. (2010:3).

78 Barriaux (2010).

79 For an overview, see Kuik et al. (2008).

80 Diringer (2010b:1).

81 Falkner et al. (2010:259).

82 Falkner (2011:258); Bodansky / Day O’Connor (2011:10).

83 Bodansky et al. (2010:10).

84 Kuik et al. (2008:327).

85 Falkner et al. (2010:259).

86 UBA (2010:28).

87 Falkner et al. (2010:258).

88 Bodansky / Day O’Connor (2011:3-10).

89 Group of 20 major economies.

90 Bodansky et al. (2010:19).

91 Stavins (2010:1).

92 CCES (2010b:1).

93 Ibid:3.

94 Copenhagen foresaw the joint commitment by developed countries to provide US$30 billion in start-up finance for developing countries in 2010-2012, and their willingness to try to mobilise US$100 billion a year as from 2020.

95 UNFCCC (2012i).

96 CCES (2010b:6).

97 Stavins (2011a:1).

98 Stavins (2010:3).

99 Ibid:2.

100 CCES (2010b:1).

101 Diringer (2011b:1).

102 Boyle (2011:4).

103 Ibid.

104 CCES (2011:1).

105 Sterk et al. (2011b:8).

106 Boyle (2011:1).

107 Ibid:7.

108 Sterk et al. (2011b:23).

109 Ibid:25.

110 CCES (2011:3).

111 Boyle (2009:10-12).

112 Diringer (2011b:1); Stavins (2011c:1).

113 Climatico (2011:1).

114 Boyle (2011:1).

115 Diringer (2011:1).

116 Stavins (2011c:2).

117 Rajamani (2011:1).

118 Sterk et al. (2011b:4).

119 Ibid:31.

120 Ibid.

121 Ibid.

122 Ibid:33.

123 Ibid.

124 Sterk et al. (2011b:33).

125 Boyle (2011:2).

126 Marcu (2012:1).

127 CCES (2012:2).

128 WRI (2012).

129 CCES (2012:2).

130 WRI (2012).

131 The Climate Group (2012a:20).

132 WRI (2012).

133 CCES (2012:3).

134 WRI (2012).

135 CCES (2012:4).

136 Sterk et al. (2012:39).

137 The Climate Group (2012a:2).

138 Sterk et al. (2012:38).

139 The Climate Group (2012b).

140 The Climate Group (2012a:2).

141 Sterk et al. (2012:6).

142 WRI (2012).

143 The Climate Group (2012a:3).

144 The Climate Group (2012b); CCES (2012:1).

145 Marcu (2012:1).

146 The Climate Group (2012a:1).

147 Ibid:3.

148 Morgan (2013).

149 The Climate Group (2013:3).

150 The Climate Group (2013:1).

151 CCES (2013:1).

152 CCES (2013:2).

153 The Climate Group (2013-4).

154 Besides, the new devise is organised under the existing ‘Cancun Adaptation Framework’, and not as a

separate instrument as hoped for by the developing world, see The Climate Group (2013:3).

155 CCES (2014a:2).

156 Ibid:3.

157 Ibid:1.

158 Ott et al. (2014:1).

159 The Climate Group (2014:1).

160 Ibid:2.

161 Ott et al. (2014:4).

162 The Climate Group (2014:5).

163 Ott et al. (2014:12).

164 Briner (2014:8).

165 Besides, the question of legal form of an instrument is distinct from the issue of whether a specific rule of an instrument is mandatory or not. A treaty might include hortatory rules while a mere political agreement contains obligatory stipulations. See Bodansky (2012:3).

166 Bodansky (2012:6).

167 Haites et al. (2013:13).

168 Haites et al. (2013:6); Morgan et al. (2014:1); Briner (2013:6); Green (2014:22); Bodansky (2014:1).

169 Briner (2013:12).

170 Bodansky (2014:3).

171 Green (2014:26).

172 Haites (2013:10).

173 Ibid:11.

174 Green (2014:23).

175 A GHG mitigation goal is a commitment to reduce or limit GHG emissions (or emission intensity) by a certain amount and by or over a certain time. They include for instances fixed level goals, base year goals, intensity goals, baseline scenario goals. See Levin (2014:4).

176 Policies are interventions such as (i) laws and regulations; (ii) economic instruments such as taxes and charges; (iii) information instruments; and (iv) Government financing mechanisms and investment. See Levin (2014:4).

177 Levin (2014:3).

178 Morgan et al. (2014:3).

179 Ibid:7.

180 Morgan (2013:15); Haites (2013:15).

181 Green (2014:25); Bodansky (2014:14); EU (2015:12).

182 Bodansky (2014:15).

183 Haites (2013:15); Bodansky (2014:15); EU (2015:12).

184 Briner (2014:14).

185 Bodansky (2014:13); Briner (2014:18).

186 Briner (2014:16); Bodansky (2014:13).

187 Davide (2014:3).

188 Haites (2013:13).

189 Morgan (2013:4); Haites (2013:13).

190 Briner (2014:13).

191 See overview at Briner (2014:15).

192 Morgan (2013:12).

193 See overview at Briner (2014:17).

194 Bodansky (2014:13).

195 Morgan (2013:13).

196 Bodansky (2014:15).

197 Haites (2013:19).

198 Bodansky (2014:15).

199 Helgeson (2015:24); Morgan et al. (2014:13).

200 See for an overview Helgeson (2015:27).

201 Morgan et al. (2014:19).

202 Helgeson (2015:35).

203 Ibid:39.

204 Morgan et al. (2014:21).

205 Nakhooda (2014:6).

206 UNEP (2014:2).

207 Ibid.

208 Mansell (2015:5).

209 Kuik et al. (2008).

210 NEAA (2011:11, 14).

211 EC (2011c).

212 In order to implement this obligation, in June 2009 the EU adopted a Climate and Energy Package in which it reiterated the overall target of a 20% GHG emission reduction, with an additional commitment to push this up to 30% if a satisfactory international agreement involving all big GHG emitters is reached.

213 In March 2011, the Commission adopted a Roadmap for Moving to a Competitive Low Carbon Economy in 2050 outlining scenarios on how to achieve this target. See EC (2011b).

214 For a detailed description see Drummond (2013).

215 See http://ec.europa.eu/energy/en/topics/energy-efficiency/energy-efficiency-directive; accessed 20 November 2015.

216 See http://ec.europa.eu/energy/en/topics/energy-efficiency/buildings; accessed 20 November 2015.

217 See http://ec.europa.eu/growth/industry/sustainability/ecodesign/; accessed 20 November 2015.

218 See http://ec.europa.eu/clima/policies/transport/vehicles/cars/index_en.htm; accessed 20 November 2015.

219 See http://ec.europa.eu/clima/policies/effort/index_en.htm; accessed 20 November 2015.

220 See http://ec.europa.eu/clima/policies/lowcarbon/ccs/directive/index_en.htm; accessed 20 November 2015.

221 Directive 2003/87/EC of the European Parliament and the Council of 13 October 2003 Establishing a Scheme for Greenhouse Gas Emission Allowance Trading within the Community, Official Journal L 275, 25 October 2003: 32-46.

222 EC (2009a:84-86).

223 Ibid.

224 Directive 2009/29/EC of the European Parliament and the Council of 23 April 2009 Amending Directive 2003/87/EC to Improve and Extend the Greenhouse Gas Emission Allowance Trading Scheme of the Community, Official Journal 140, 5 June 2009: 63-87.

225 Helm (2009a:229).

226 Massai (2007:21).

227 Farnsworth (2007:29).

228 Taschini (2014:9).

229 See http://ec.europa.eu/clima/policies/ets/reform/index_en.htm; accessed 20 November 2015.

230 Henningsen (2015:2).

231 Finland and The Netherlands (1990), Norway and Sweden (1991), the UK (1993), Germany (1999), Denmark (2002) and Ireland (2010) have a carbon dioxide tax in place; Austria, Belgium and Slovenia have some kind of carbon elements in their tax regime; in 2010 Spain was investigating the options for introducing carbon taxations; see Wilkinson (2012).

232 EC (2009a:109).

233 FSB (2010:2).

234 EC (2012b).

235 EC (2010).

236 EC (2012c).

237 EC (2011a:3).

238 EC (2009a:244).

239 EC (2012d).

240 Boyle (2011:2).

241 EC (2012d).

242 NEAA (2011:11, 14).

243 Since November 2009, 23 of the 50 states had adopted a binding GHG emission reduction targets, although these vary in stringency, timing, and enforceability.

244 CCES (2009b).

245 Zusman et al. (2012:3).

246 Burtraw (2011:1).

247 CCES (2015:1).

248 For more information, see US (2010:40).

249 Ibid:43.

250 CCES (2014b:1).

251 Ibid:2.

252 Burtraw (2011:1).

253 Tubman (2015).

254 Morris (2014:13).

255 Ibid:11.

256 US (2010:44).

257 For more details see Tubman (2015:5).

258 Tubman (2015:1).

259 EPA (2015).

260 US (2010:77).

261 UNFCCC (2009b:30).

262 US (2010:98).

263 Ibid:99.

264 Ibid:102.

265 NEAA (2011:11, 14).

266 CELP (2012:1).

267 Lewis (2007:1).

268 China, an active participant in the CDM, is by far the largest source of CDM credits, accounting for over 40% of those generated to date.

269 Gupta (2007:167).

270 Oberheitmann / Sternfeld (2009:141).

271 Xinhuanet (2009).

272 Hsu (2011:2).

273 Marcu (2014:2).

274 Developed countries, on average, peaked at between 10 and 22 tons of GHGs per capita, when their GDP per capita was between US$20,000 and US$25,000 in 2010 dollars. China’s objective is to peak emissions at 8 tons GHG per capita, and US$14,000 GDP per capita. See The Climate Group (2015:1).

275 The Climate Group (2015:1).

276 CCES (2007c).

277 CELP (2012:1).

278 Seligsohn / Hsu (2011:1).

279 Finamore (2011:1-2).

280 PEW (2007:2).

281 For manufacturers, China imposed target fuel economy standards for new cars by 2020. Consumers were offered a reduction in the vehicle tax paid on energy saving vehicles by 50%, while the vehicle tax on electric cars was abolished. See CCES (Factsheet China 2015).

282 Xinhuanet (2011:VIII).

283 The Climate Group (2015:3).

284 Gera (2012:1).

285 Since 2008 a tax focusing on oil product consumption has been levied on refiners and importers or since 2006, an excise tax rate adjustments is used to discourage purchase of larger cars that consume more fuel.

286 Seligsohn / Hsu (2011:3).

287 PEW (2007:3).

288 Moarif (2012).

289 Sterk et al. (2011b:35).