Lavanya Rajamani

CBDR&RC in a Regime Applicable to All

The principle of common, but differentiated, responsibilities and respective capabilities (CBDR&RC) is fundamental to the UNFCCC. Some options for a nuanced model of differentiation that addresses both responsibility and capability in a changing world are explored, such as new categories of countries, and some of the political issues that such a model might face are considered. The strengths and limitations of options for graduation based on ‘objective’ criteria such that countries could move between categories or ‘graduate’ – an option provided by the UNFCCC – are discussed. Countries could also choose to join another club (e.g. the G20), self-elect into categories or differentiate among themselves implicitly by accepting different commitments and actions. CBDR&RC will form part of the overall legally binding agreement, and must apply symmetry in some respects and differentiation in others to the commitments and actions contained therein. Some possible characteristics of CBDR&RC of relevance in a regime ‘applicable to all’ are outlined. These include promoting climate action and using mechanisms available in the UNFCCC to instil dynamism. Differentiation on mitigation must consider the distinctions between absolute and relative reductions, as well as commitments to outcomes and implementation. CBDR&RC should be applied to mitigation, adaptation, and the means of implementation. Policy relevance In Durban, Parties agreed to negotiate a regime ‘applicable to all’, which sent a political signal that there should be greater symmetry between nations. The world has changed since the UNFCCC was negotiated in 1992. It is now less helpful to think only in terms of two groups of countries (e.g. Annex I and non-Annex I), and evident that there are significant differences between member states. This requires a more nuanced interpretation of the principles of equity and CBDR&RC, which is an integral part of the UNFCCC. The options for the different approaches outlined in this article might help in the construction of a more nuanced model. All must do more, while some must do more still than others. To achieve this, some defining characteristics of CBDR&RC in a regime applicable to all are suggested.

AMBITION AND DIFFERENTIATION IN THE 2015 PARIS AGREEMENT: INTERPRETATIVE POSSIBILITIES AND UNDERLYING POLITICS

The 2015 Paris Agreement represents a historic achievement in multilateral diplomacy. After years of deeply discordant negotiations, Parties harnessed the political will necessary to arrive at a climate change agreement that strikes a careful balance between ambition and differentiation. The Paris Agreement contains aspirational goals, binding obligations of conduct in relation to mitigation, a rigorous system of oversight, and a nuanced form of differentiation between developed and developing countries. This article will explore the key building blocks of the Paris Agreement—ambition and differentiation—with an eye to mining the text of the Agreement for its interpretative possibilities and underlying politics.

The Durban Platform for Enhanced Action and the Future of the Climate Regime

The Durban Climate Conference, marked by tension, high drama and sleepless nights, agreed on a set of historic decisions under the climate regime 36 hours after the scheduled end of the conference. The climate regime — comprising the 1992 Framework Convention on Climate Change and its 1997 Kyoto Protocol, and decisions taken by Parties under these instruments — has been plagued in the last few years, in particular after the debacle at Copenhagen, by doubt and uncertainty. Doubt over its ability to meet climate goals, and uncertainty over its future, in particular that of the Kyoto Protocol. At Durban, Parties strengthened the climate regime with decisions to implement the 2010 Cancun Agreements, extend the beleaguered Kyoto Protocol, for a second commitment period, and launch a new process to negotiate a post-2020 climate regime. This new process, christened the Ad-Hoc Working Group on the Durban Platform for Enhanced Action, is intended to craft the agreement that will govern, regulate and incentivize the next generation of climate actions.

THE CANCUN CLIMATE AGREEMENTS: READING THE TEXT, SUBTEXT AND TEA LEAVES

The Cancun Agreements, hailed by Patricia Espinosa, Mexican Secretary of Foreign Affairs and President of the Cancun Conference, as launching ‘a new era of international cooperation on climate change,’ 1 were concluded on 11 December 2010 to widespread acclaim. These agreements that will guide the climate negotiations for the foreseeable future represent another twist in the tale of the ongoing negotiations.

EU Climate Change Unilateralism

The EU is engaged in an ambitious, controversial, and high-stakes experiment to extend the reach of its climate change law. It is seeking to use its market power to stimulate climate action, and to substitute for climate inaction, elsewhere. This is most apparent in relation to the EU’s decision to include aviation in its emissions trading scheme. While we are sympathetic to the EU’s objectives, and do not take issue with its unilateral means, we argue that the EU is not giving adequate weight to the principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDRRC). While the status, meaning, and implications of this principle are contested and unclear, it requires that developed countries should take the lead in addressing the causes and effects of climate change. We argue that the concept of CBDRRC retains relevance in the context of unilateral climate action, and that the EU’s Aviation Directive should be interpreted, applied, and where necessary adjusted in the light of it. We put forward two concrete proposals to achieve this end.

III. THE MAKING AND UNMAKING OF THE COPENHAGEN ACCORD

The last two years have witnessed a flurry of diplomatic activity on climate change. In addition to the 16 weeks of scheduled inter-governmental negotiations under the auspices of the UN Framework Convention on Climate Change (FCCC), meetings, many at a Ministerial level, were convened by the G-8, the Major Economies Forum, the UN Secretary General, and Denmark, the host of the 15 th Conference of Parties (COP-15) to the FCCC. Notwithstanding regular and intense engagement at the highest-level many fundamental disagreements remained in the lead up to COP-15, including on the future (or lack thereof) of the Kyoto Protocol, the legal form and architecture of the future legal regime, and the nature and extent of differential treatment between developed and developing countries.

Climate Change Liability: Transnational law and practice

Part I. Legal, Scientific and Policy Aspects: 1. Introduction Jutta Brunnee, Silke Goldberg, Richard Lord and Lavanya Rajamani 2. The scientific basis for climate change liability Myles Allen 3. Overview of legal issues relevant to climate change Jutta Brunnee, Silke Goldberg, Richard Lord and Lavanya Rajamani 4. Policy considerations Jutta Brunnee, Silke Goldberg, Richard Lord and Lavanya Rajamani Part II. National Laws: Asia and Pacific: 5. Australia Ross Abbs, Peter Cashman and Tim Stephens 6. China Deng Haifeng 7. India Lavanya Rajamani and Shibani Ghosh 8. Indonesia Mas Achmad Santosa, Rifqi Assegaf and Josi Khatarina 9. Japan Yukari Takamura Africa/Middle East: 10. Egypt Dalia Farouk and Lamiaa Youssef 11. Israel Issachar Rosen-Zvi 12. Kenya Patricia Kameri-Mbote and Collins Odote 13. South Africa Debbie Collier and Jan Glazewski Europe and Eurasia: 14. European Union Ludwig Kramer 15. Germany Hans-Joachim Koch, Michael Luhrs and Roda Verheyen 16. Poland Bartosz Kuras, Maciej Szewczyk, Dominik Walkowski, Tomasz Wardynski and Izabela Zielinska-Barlozek 17. English law Silke Goldberg and Richard Lord 18. Russia Fiona Mucklow Cheremeteff, Max Gutbrod, Daria Ratsiborinskaya and Sergei Sitnikov North America: 19. Canada Meinhard Doelle, Dennis Mahony and Alex Smith 20. United States of America Michael B. Gerrard and Gregory E. Wannier Central and South America: 21. Brazil Yanko Marcius de Alencar Xavier and Pedro Lucas de Moura Soares 22. Mexico Jose Juan Gonzalez Marquez.

THE WARSAW CLIMATE NEGOTIATIONS: EMERGING UNDERSTANDINGS AND BATTLE LINES ON THE ROAD TO THE 2015 CLIMATE AGREEMENT

The Warsaw conference, 2013, marked the halfway point from the Durban conference, 2011, that launched negotiations towards a 2015 climate agreement and the Paris conference, 2015, slated as the deadline for these negotiations. As such, the Warsaw conference needed to register a step change in the process—from the airing of differences to negotiating them. It also needed to create the conditions necessary to reach agreement in 2015. This article analyses the outcome of the Warsaw negotiations with a view to determining the extent to which it paves the way for a 2015 climate agreement. In particular, this article explores the divisions over, prospects for and contours of a likely 2015 agreement. The 2015 agreement is likely to be shaped by the resolution Parties arrive at on three overarching issues. These are: architecture—whether the agreement will be ‘top-down’ (prescriptive) or ‘bottom-up’ (facilitative) or a hybrid version of the two; differentiation—the nature and extent of it, and in particular whether it will eschew or replicate the Kyoto model of differentiation and related vision of equity; and legal form —whether the 2015 agreement will be legally binding, and if yes, as is likely, which elements of the 2015 package will be in the legally binding instrument and which elements will be in non-binding complementary decisions. The Warsaw outcome will therefore be analysed with a view to providing insights into the likely architecture and legal form of as well as treatment of differentiation and equity in the 2015 agreement.

Differentiation in the Emerging Climate Regime

The climate regime, comprising the Framework Convention on Climate Change of 1992 and the Kyoto Protocol of 1997, contains elements of prescription for and leadership of developed countries and differentiation in favor of developing countries. The nature and extent of differentiation in favor of developing countries in the climate regime, however, has remained contentious through the years. While there is a shared understanding among states that they have common but differentiated responsibilities in addressing climate change, there is little agreement on the formulae for differentiating between states in doing so. This Article argues that the outcomes of international climate negotiations in recent years, in particular the Copenhagen Accord of 2009 and the Cancun Agreements of 2010, offer a distinctive vision of differential treatment. Through these instruments, the international community appears to be moving from differentiation in favor of developing countries towards differentiation or flexibility for all countries, as well as towards increasing parallelism between developed and developing countries. The Durban Platform of 2011, which launches a new process to negotiate a post-2020 agreement, confirms this trend, setting the scene for the erosion of differential treatment in the future/post-2020 climate regime. This Article explores the nature of differentiation, as it is evolving, in the emerging climate regime, in particular as it relates to mitigation obligations, and the impact this is likely to have on the design, ambition, reach and rigor of the emerging climate regime.

Promoting compliance in an evolving climate regime

Introduction Jutta Brunnee, Meinhard Doelle and Lavanya Rajamani Part I. Context: 1. The emerging post-Cancun climate regime Jennifer Morgan 2. Promoting compliance with MEAs Jutta Brunnee 3. Compliance regimes in multilateral environmental agreements Jane Bulmer Part II. The Kyoto Compliance System - Features and Experience: 4. Key features of the Kyoto protocols compliance system Rene Lefeber and Sebastian Oberthuer 5. Experience with the facilitative and enforcement branches of the Kyoto compliance system Meinhard Doelle 6. Experiences with Articles 5, 7 and 8 defining the monitoring, reporting and verification system under the Kyoto protocol Anke Herold Part III. Compliance and the Climate Change Regime - Issues, Options and Challenges: 7. The role of non-state actors in climate compliance Eric Dannenmaier 8. Facilitation of compliance Catherine Redgwell 9. Enforcing compliance in an evolving climate regime Michael Mehling 10. Financial mechanisms under the climate change regime Haroldo Machado-Filho 11. Post-2012 compliance and carbon markets Francesco Sindico 12. Compliance and the use of trade measures Jake Werksman 13. Comparability of efforts among developed country parties and the post-2012 compliance system M. J. Mace 14. From the Kyoto protocol compliance system to MRVs: what is at stake for the European Union? Sandrine Maljean-Dubois and Anne-Sophie Tabau 15. Compliance in transition countries Christina Voigt 16. The KPS and developing countries and compliance in the climate regime Lavanya Rajamani 17. The role of dispute settlement in the climate change regime Ruth Mackenzie 18. Depoliticizing compliance Geir Ulfstein Part IV. A Look Forward: 19. Conclusion Jutta Brunnee, Meinhard Doelle and Lavanya Rajamani.