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A Regime in Peril: Update on Efforts to Negotiate the Next Phase of the UN Climate Change Regime

Wednesday, 21 September 2011
by Meinhard Doelle, Associate Professor of Environmental Law, Associate Director, Marine & Environmental Law Institute, Schulich School of Law, Dalhousie University, Halifax, Canada
A Regime in Peril: Update on Efforts to Negotiate the Next Phase of the UN Climate Change Regime
1. Introduction

2011 is shaping up as yet another critical year for the climate change regime. Two previous deadlines to complete the design of the post 2012 climate change regime, in Copenhagen in 2009 and in Cancun in 2010, failed to produce a comprehensive agreement.  The conference of the parties in Durban, South Africa this December is the third attempt to conclude the design of the future regime.  

Negotiations on the post 2012 climate change regime under the United Nations Framework Convention on Climate Change (UNFCCC) [1] have been underway informally for almost a decade, starting well before the current regime under the Kyoto Protocol ever came into force in 2005.[2] Negotiations started slowly and informally, but by 2007, Parties agreed that urgent action was needed if a new agreement was to be in place by the time the first commitment period under the Kyoto Protocol was due to expire at the end of 2012.  This sense of urgency lead to the Bali Action Plan in 2007, designed to lead to a new treaty by 2009.

The driving force behind the Bali Action Plan, which charted the course for a new negotiating process, was the desire of the parties to avoid a gap between the first and future commitment periods and the impact of uncertainty over the future of the climate change regime on the carbon market. The focus in Bali was on launching formal negotiations that would include all UNFCCC parties and would lead to an agreement that can be implemented by the end of 2012.

In order to facilitate the negotiation process, parties worked to provide as much substantive direction for the negotiation process as possible. In particular, many parties sought to include the medium-and long-term targets offered by the IPCC in the Fourth Assessment Report in the negotiating mandate.[3] Other key issues included the role of major developing countries and the U.S. in the emission reduction effort,[4] the future of the carbon market,[5] the issue of bunker fuels from international marine and air transport,[6] adaptation, avoided deforestation,[7] and the roles of funding and technologies in the new regime.[8]  

2. Key Elements of the Bali Action Plan

The UNFCCC dialogue and the Kyoto Protocol working group on new Annex I targets initiated in Montreal continue to influence the negotiations of the post-2012 regime. Due to the absence of the United States from the Kyoto process and the unwillingness of developing countries to negotiate their mitigation actions within the Kyoto context, negotiations continue at the time of writing to proceed on separate tracks. The Kyoto track is focussed on Annex I mitigation commitments and related issues. The UNFCCC track is being carried out by an Ad Hoc Working Group on Long-Term Cooperative Action, which is preoccupied with engaging the U.S. and non-Annex I countries in climate change mitigation, but in the process is also dealing with adaptation, technology and finance. The following section provides a brief overview of each of these tracks.  

3. The Kyoto Ad Hoc Working Group

The Ad Hoc Working Group under the Kyoto Protocol was a continuation of a committee initially established in 2005 in Montreal in accordance with Article 3.9. As a Kyoto process, it excludes the United States. Its focus is on post-2012 mitigation commitments for developed countries. In Bali, parties to this process accepted the conclusion of the IPCC’s Fourth Assessment Report that emission reductions for developed countries will have to be in the range of 25% to 40% by 2020 in order for the objective of the UNFCCC — to prevent dangerous interference with the climate system — to remain achievable. This does not mean that future commitments will be in this range, but means that any deviation from this range will be seen by many as a failure of the process. In Copenhagen and Cancun, some parties started to distance themselves from this conclusion of the IPCC, leaving the collective 2020 mitigation target for developed countries as uncertain as ever. Given the agreement to the two degree target in the Copenhagen Accord and in the Cancun Agreements, Annex I countries may yet agree on new absolute emission reduction limits relative to a 1990 baseline in the range of 25% to 40% collectively, but this if far from clear.

The mandate of the Ad Hoc Working Group has remained essentially unchanged from its origins in Montreal and Bali — to negotiate mitigation, adaptation and finance commitments for post¬2012. The focus in Bali was on planning the activities and meetings of the ad hoc working group for the next two years, leading to a decision on future emission reduction commitments by developed country parties to the Kyoto Protocol at COP 15 in 2009 in Copenhagen. With the failure of the parties to reach consensus in Copenhagen, the mandate was extended to COP 16 in Cancun.  It has since been extended to COP 17 in Durban.

Critical to the success of the work of the Ad hoc Working Group continues to be that adequate contributions to the mitigation effort from the U.S. and developing countries are negotiated in parallel. A key point of disagreement is whether developed country mitigation remains under Kyoto or are treated the same as those from the US and developing countries. In Cancun, Japan, Russia and Canada were most vocal in their opposition to a second commitment period under the Kyoto Protocol without the US and key developing countries coming under Kyoto.   A number of developed and developing Parties continue to be reluctant to make significant concessions until there is progress on the contribution from the United States.

Other key outstanding issues include the length of the next commitment period, and the basis on which the emission reduction targets of individual countries will be determined.  The future of surplus credits from the first commitment period and other conditions under which Annex I parties to the Kyoto Protocol might be willing to commit to emission reductions in the range of 25% to 40% remain unresolved.

A long list of more detailed issues still needs to be addressed by the Kyoto Protocol Ad hoc Working Group. Top on the list is the future role of the three flexibility mechanisms — the Clean Development Mechanism (“CDM”), Emissions Trading and Joint Implementation. This will involve consideration of a long list of proposed changes to the rules under which the mechanisms operate, such as opening up the CDM to carbon capture and storage or nuclear projects, considering sectoral CDM projects, improving the sustainable development benefits of the Clean Development Mechanism, and opening up Joint Implementation as a possible bridge for some non-Annex I parties.

4. The Ad Hoc Working Group on Long Term Cooperative Action

The Ad Hoc Working Group on Long Term Cooperative Action (“LCA”) represents the formalization and continuation of the UNFCCC dialogue initiated in Montreal in 2005. The Convention dialogue took the form of four separate meetings in 2006 and 2007. In Bali, this process was turned into a formal negotiating process to be run and completed in parallel with the Kyoto Ad Hoc Working Group process. All UNFCCC parties are involved in the LCA process. This means that this is the forum for negotiating the involvement of non-Kyoto parties (the United States) in the post-2012 regime. It has also become the default process for issues excluded from the Kyoto Ad Hoc Working Group process for one reason or another. Most notably perhaps, the LCA process has become the forum for negotiating the engagement of developing countries in climate change mitigation action.

The mandate of the Ad Hoc Working Group on LCA is to launch a comprehensive process to agree on long-term cooperative action that will enable the full, effective implementation of the UNFCCC. Parties agreed to be guided by the IPCC’s Fourth Assessment Report, but without a direct link to any of the emission reduction scenarios. The process takes the form of an Ad Hoc Working Group that is to meet at least four times a year and conclude its work in time for COP 15 in Copenhagen in 2009. As with the Kyoto Protocol Ad Hoc Working Group, the mandate of the LCA AWG has now been extended to COP 17 in Durban.

The Bali Action Plan for the LCA includes a non-exhaustive list of issues to be considered under each of the four “pillars” — mitigation, adaptation, finance and technology. Most notably, the Bali Action Plan refers to measurable, reportable and verifiable mitigation actions and commitments by developed countries. The clause also calls for mitigation efforts of developed countries to be comparable. Since the mitigation actions of most developed states are being considered by the Kyoto Ad Hoc Working group, this provision in the Action Plan is generally considered the “U.S. clause”. The Plan also refers to measurable, reportable and verifiable mitigation actions by developing countries, supported by measurable, reportable and verifiable assistance from developed countries.

LCA issues to be finalized for the post-2012 regime include many aspects of mitigation in developed and developing countries, sources of finance for adaptation, mitigation, technology and capacity building, bunker fuels from aviation and marine transport, and the role of sectoral approaches for Annex I countries.[9] The LCA AWG’s mandate has been extended until COP 17 in Durban with the aim of developing a comprehensive agreement on shared vision, adaptation, mitigation, finance, technology, and capacity building.  The work of the LCA AWG will continue in parallel with the KP AWG.

5. The Copenhagen Accord

Other than the continuation of the two Ad Hoc Working Groups (“AWGs”) past their initial two-year mandates, the main outcome from COP 15 was the negotiation of the Copenhagen Accord by major economies in the developed and developing world. Although it has no formal standing within the UNFCCC, and was opposed by a number of developing countries, it does have the support of most parties. The following are some of the key elements of the Copenhagen Accord:
  •  The Accord endorses the continuation of the two AWGs to conclude a more comprehensive agreement at COP 16 on the range of issues currently before the two AWGs.
  • It endorses the goal of limiting global average temperature increases to below 2 degrees Celsius, and the need to make deep cuts in emissions to achieve this goal.
  • Annex I Parties were asked to submit by January 31, 2010, and subsequently implement, quantified economy-wide emission targets by 2020. Efforts to implement these targets are to be subject to international monitoring, reporting and verification (“MRV”). The agreement does not include a collective target for Annex I Parties. The United States and Canada have each submitted targets of 17% below 2005 levels by 2020. Other developed countries have submitted more ambitious targets, however, collectively, the targets are generally recognized to be inadequate.
  • Non-Annex I Parties were similarly asked to submit a list of mitigation actions they intend to implement (supported and unsupported Nationally Appropriate Mitigation Actions). Any involvement of LDCs and Small Island Developing States is strictly voluntary. The implementation of these actions is to be communicated through National Communications every two years. The level and nature of the monitoring, reporting and review will depend on whether the actions are supported by Annex I Parties. For unsupported actions, the focus will be on domestic MRV, but with some international transparency. For supported actions, there will be international MRV. As with Annex I parties, the agreement does not include a collective target for Non-Annex I parties. Many developing countries have made submissions under this clause of the agreement.  While also inadequate, the developing country commitments are generally accepted to be closer to an equitable share of the burden as set out by the IPCC’s fourth assessment report.
  • The Accord includes a collective commitment from developed countries to contribute $30 billion (U.S.) from 2010 to 2012 for adaptation and mitigation in developing countries, and to increase the funding to $100 billion (U.S.) per year by 2020 from a variety of unspecified sources.
  • The Accord provides for a review by 2015 to assess the implementation of the Accord and its adequacy, including in particular the need to consider the 1.5 degree global average temperature limit based on the available science at that time.[10] 
6. The Cancun Agreements

In contrast to the high expectations in Copenhagen in 2009, it was clear months before the meetings in Cancun that there would be no final comprehensive agreement in 2010.  Rather, parties were aiming to resolve enough key issues to enable a comprehensive agreement to be reached in 2011 in Durban, South Africa. The role of Cancun was to set the direction for the negotiations both in terms of process and substance.  The Copenhagen Accord loomed large in Cancun.  Would the substance of the Accord be bought back into the UN process, or would the Accord signal a new process outside the UNFCCC? On substance, would the agreements reached by a few selected parties in Copenhagen be accepted by all UNFCCC parties, or would the UN process take a different path?

The failed “friends of the chair” process that prevented the adoption of the Copenhagen Accord at COP 16 clearly influenced the negotiations in Cancun.  The Mexican presidency worked hard to re-establish trust in the UNFCCC negotiation process by ensuring that all parties were included in the process up to the very end.  These efforts clearly paid off, even though Bolivia in the end stood alone in objecting to the agreements reached as an inadequate response to the climate change challenge.  One of the reasons for Bolivia’s objection was that the Accord was very influential on the substance of the Cancun Agreements.  In fact, most of the key provisions of the Copenhagen Accord found their way into the Cancun Agreements.

The substantive outcome from Cancun included agreement on a range of issues, including financing, forests, technology transfer and adaptation.  The various agreements reached represent real progress, in fact more than had been thought possible by many during the slow-paced talks of the past fortnight.  Still, the parties remain divided on most fundamental issues, including the legal form of the agreement, compliance, the overall mitigation targets, and individual contributions to those targets.

The substantive outcomes from Cancun include the following:
  • The emissions reduction pledges initially filed under the Copenhagen Accord were brought into the UN climate convention framework as minimum commitments; this means emissions mitigation actions from major emitters are now enshrined under the UN process.
  • The Green Climate Fund, initially to be managed by the World Bank, has been established, and should be operationalized in 2011.  The Copenhagen promise of a $100 billion per year in financing from developed to developing countries for mitigation and adaptation has been brought under the UN process.
  • The Cancun Agreements include more detailed agreement on monitoring, reporting and verifying (MRV) emissions reductions and assistance.
  • An agreement on REDD, an anti-deforestation mechanism to pay developing countries to protect their forests.
  • A new technology transfer mechanism, to deploy renewable energy and other clean technologies to the developing world.
  • Acceptance of carbon capture and storage (CCS) as a potentially eligible activity for carbon crediting under the CDM, subject to resolving outstanding environmental and legal issues.
  • The Cancun Adaptation Framework was adopted.  It is intended to assess the climate change threat to poor and vulnerable countries.
7. Expectations for Durban and Beyond

At the time of writing, it is unclear whether the Conference of the Parties in Durban, South Africa can deliver a comprehensive agreement on the substance of the post 2012 regime or on its legal form.[11] Progress is being made on certain elements, such as institutions for technology and finance, amendments to the CDM, and adaptation.  At the same time, the fundamental deadlock continues.  Developed countries such as the US, Canada, Australia, Japan and Russia continue to resist commitments that are in line with science and equity, making it easy for key developing countries such as China to resist making commitments that would make implementation of commitments more palatable globally.    

Leaving aside the timing of the agreement on the future regime, it is equally difficult to predict the substantive outcome of the current negotiations respecting the post-2012 regime. It appears increasingly unlikely that the regime will include firm medium-term targets for developed countries in the range of 20% to 40% below 1990 levels by 2020. It is likely that it will include long-term global aspirational targets in excess of 50% below 1990 levels. Whether such targets will be translated into firm emission limits for Annex I countries, whether there will be a change in the composition of Annex I and non-Annex I countries, and what other changes will be made to the regime is difficult to predict. The following are likely to be among the other key issues to be addressed in the future regime:
  • whether the new regime will be in the form of a new protocol, an amendment to the Kyoto Protocol, an implementation agreement, a COP decision, or some combination of these options;
  • whether the regime will continue with firm caps for developed countries;
  • how emission reductions will be allocated among all parties;
  • whether and how to incorporate sectoral approaches into the regime, particularly with respect to agriculture, aviation and marine transport;
  • whether other alternatives or complements to the current approach will be incorporate into the regime;
  • whether the list of countries with firm caps will be expanded;
  • whether to open up Joint Implementation to some developing countries;
  • how to implement the commitment to measurable, reportable and verifiable mitigation actions by developing countries;
  • how to implement the commitment by developed countries to measurable, reportable and verifiable assistance on mitigation;
  • how to bring the United States into the regime in a manner that enables it to participate in the regime and provides the assurance needed by other parties to move ahead with their own commitments;
  • how to implement the Technology Institutions developed in Copenhagen and Cancun to facilitate better access to key technologies in developing countries;
  • how to implement the finance commitments and institutions to finance adaptation and mitigation in developing countries;
  • how to update the CDM to make it a more effective tool for the dual purpose of emission reduction and sustainable development in developing countries; and
  • how to ensure high levels of compliance with the increasingly onerous obligations likely to be imposed on parties.

  1. United Nations Framework Convention on Climate Change, Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (1992), 31 I.L.M. 849, available online at
  2. Report of the Conference of the Parties on its Third Session, Kyoto Protocol to the U.N. Framework Convention on Climate Change, 3rd Sess., pt. 2, Annex I, U.N. Doc. FCCC/CP/ 1997/7/add. 1, reprinted in 37 I.L.M. 22 (1998)
  3. For the most recent summary for policy makers, see Working Group I, Intergovernmental Panel on Climate Change, Climate Change 2007, “The Physical Science Basis, Summary for Policymakers”; Intergovernmental Panel on Climate Change, Climate Change 2007, “Impacts, Adaptation, and Vulnerability, Summary for Policymakers”; Intergovernmental Panel on Climate Change Working Group II, Climate Change 2007, “Mitigation of Climate Change, Summary for Policymakers”, all available online at
  4. The term commonly used for emission reduction efforts is “mitigation”. The ability to convince the United States on the one hand and key developing countries on the other hand, to commit to meaningful mitigation actions is generally seen as key to the success of the current round of negotiations.
  5. There is, for example, ongoing debate on whether to continue with absolute limits on a party to party basis. The future of the three flexibility mechanisms is also very much part of the debate.
  6. Emissions from international transport by air or water are not included in party’s emission inventories for the current commitment period. The challenge is to find a way to decide how to allocate emissions for transportation between parties, and for transportation between parties and non-parties.
  7. This issue was first raised in Montreal and is likely to be part of any post-2012 agreement. The issue is how to encourage developing countries, since they are currently not required to account for land use change, to reduce deforestation. Deforestation is considered to contribute up to 20% of the increases in GHG concentrations in the atmosphere.
  8. In the Bali mandate negotiated in 2007, funding mechanisms and technology have attained a new status as key pillars of the post-2012 regime.
  9. Sectoral approaches refer to the concept of setting emissions limits for industry sectors. Such limits can operate either in place or in addition to country by country targets. Most likely, sectoral targets would be set on an intensity basis for a limited number of sectors, with those sectors being limited in their emissions per unit of production or service provided.
  10. The Copenhagen Accord was at the time of writing available as part of document FCCC/CP/ 2009/L.7, available on the UNFCCC website at
  11. For an update of the 2011 technical negotiations leading up to Durban, see, for example:

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