TWN Info Service on Climate Change (May09/01)
27 May 2009
Third World Network

North proposes South's commitments in new climate treaties
Published in SUNS #6706 dated 26 May 2009

Geneva, 25 May (Meena Raman) -- Developed countries have submitted proposals under the United Nations Framework Convention on Climate Change (UNFCCC), calling for new agreements under the Convention, as possible legal outcomes for the meeting of the Conference of Parties in Copenhagen in December this year.

The countries forwarded their submissions to the UNFCCC, in view of the next negotiating session on 1-12 June in Bonn at the meetings of the Ad-hoc Working Group on Long-term Cooperative Action (AWG-LCA) and the Ad-hoc Working Group under the Kyoto Protocol (AWG-KP).

Among the different proposals are a new "Implementing Agreement" under the Convention (proposed by the US); a single treaty that unifies action under the Convention and the Kyoto Protocol (proposed by Japan, Australia and New Zealand); and a new Protocol under the Convention and an amended Kyoto Protocol (as proposed by Australia).

These proposals have serious implications for developing countries. They seek to alter the nature of obligations of developing countries under the Convention and the Kyoto Protocol, by requiring some countries among them, to take on binding emission commitments. Under the present rules, only developed countries (also known as Annex I countries) have to undertake binding and quantified emission reduction commitments.

The proposals call for a differentiation of mitigation actions among developing countries. They seek to create a new category of developing countries, to be included within terms such as "countries with significant emissions profiles" (as referred to by the US), "Parties who have substantial contribution to the global emissions" (as referred to by Japan) and "advanced developing economies" (as referred to by Australia). Under the proposals, developing countries included within the proposed categories would have to undertake additional commitments.

For such a proposed differentiation of countries and commitments to be implemented, amendments to the Convention would be necessary. Further, a new implementing agreement or a new single treaty, as proposed, could lead to the scrapping of the Kyoto Protocol and basic alterations to the Convention itself.

The issue of differentiation of developing countries has been highly controversial in the climate talks, as under the present UNFCCC and Kyoto Protocol provisions, developing countries are not obliged to undertake any binding quantified emission reduction targets based on the principle of common but differentiated responsibility under the UNFCCC.

Also, under paragraph 1(b)(ii) of the Bali Action Plan (adopted in Bali in December 2007), the developing countries are not differentiated. These countries have to undertake nationally appropriate mitigation actions in the context of sustainable development, supported and enabled by technology, financing and capacity building, in a measurable, reportable and verifiable manner. The technology and financing are supposed to be provided for by the developed countries.

The developed countries' proposals also call on individual developing countries to list their national mitigation action plans, to be placed in an annex or appendix in an agreement in Copenhagen. Australia proposed that such a listing would be in the form of "schedules" similar to the schedules under WTO agreements.

Additional obligations would thus have to be undertaken by all developing countries, while some among them would have to take on even deeper and more binding obligations, according to the developed countries' proposals.

The developed countries have also proposed that the present two tracks of UNFCCC negotiations (under the two working groups on Kyoto Protocol and on the Bali Action Plan's long-term cooperative action) be brought together or merged.

This is contrary to the position of most developing countries that have insisted that the negotiations be maintained on the two separate tracks, one on the further emission-reduction commitments to be made by Annex I parties under the Kyoto Protocol, and the other on long-term cooperative action under the Bali Action Plan that includes mitigation and adaptation actions, transfers of technology and finance, and a "shared vision."

Under the present rules, developed countries listed as Annex I have to make a new commitment to reduce emissions through certain quantified targets and within a deadline in a second commitment period after the expiry of the first period in 2012. The developing countries are generally of the view that this is a commitment under the Kyoto Protocol separate from the actions to be agreed to under the Bali Action Plan.

The developed countries, in contrast, want their actions being negotiated under the Kyoto Protocol, to be linked to the negotiations on the Bali Action Plan, through which they aim to extract concessions from developing countries in the form of higher commitments on mitigation.

They believe this aim of getting developing countries to commit to more than what they are now obliged to can only be obtained by making it a condition for their own further action under the Kyoto Protocol. Thus, they are attempting to have the two tracks merged into a kind of "single undertaking" (a term originating from the WTO), to be agreed to in Copenhagen under a single agreement.

Another complication is that the United States is a member of the Convention but not of the Kyoto Protocol. It is obliged under the Bali Action Plan to undertake comparable mitigation efforts as the other developed countries that belong to the Kyoto Protocol.

The United States, in its submission, proposed that the UNFCCC's Copenhagen meeting this December adopt a "Copenhagen Implementing Agreement". The US said that it is committed to reaching a strong international agreement based on both robust targets and ambitious actions that will be embodied in US domestic law and on the premise that the agreement will reflect important national actions of "all countries with significant emissions profiles" to contain their respective emissions.

The US proposal for an implementing agreement under the Convention is, according to its submission, "in order to allow for legally binding approaches and to reflect the Bali Action Plan's mandate to further implement the Convention."

In attaching the implementing agreement to its submission, the US also proposed a decision to adopt the implementing agreement in Copenhagen.

On mitigation, the implementing agreement proposes that all Parties implement their respective nationally appropriate mitigation actions which are to be reflected in an appendix called Appendix 1. In addition, Parties are to formulate and submit low-carbon strategies that articulate an emissions pathway to 2050. The mitigation action is subject to measurement, reporting and verification.

With respect to developed-country Parties, the US proposal suggests that countries include in Appendix 1, quantitative emissions reductions/removals in the 2020 or other time-frame, in conformity with domestic law. Each Party is to formulate and submit a low-carbon strategy for long-term emissions reductions of at least a number to be specified by 2050.

The US submission also states that recognising that the circumstances of countries naturally evolve over time, the above provision in relation to developed countries will apply, when Appendix 1 is next updated, to other Parties in accordance with objective criteria of economic development.

It further proposes that in relation to developing-country Parties whose national circumstances reflect greater responsibility or capability, for such countries, Appendix 1 includes nationally appropriate mitigation actions in the 2020 or other time-frame that are quantified, as, for example, reduction from business-as-usual and are consistent with the levels of ambition needed to contribute to meeting the objective of the Convention.

Such developing countries are also required to formulate and submit a low-carbon strategy for long-term net emissions reductions by 2050, consistent with the level of ambition needed to contribute to meeting the objective of the Convention. Appendix 1 is to also include the date by which the Party will commit to the type of action.

According to the US, other developing-country Parties (i. e., other than those with greater responsibility or capability) are to implement nationally appropriate mitigation actions and develop low-carbon strategies, consistent with their capacity.

The US proposal also calls for developing countries except the least developed countries, to provide inventories of emissions on an annual basis. (According to Article 12.1 of the Convention, there is no requirement for an annual submission of inventories by developing countries. Further, submission of national inventories are subject to the extent of a country's capacities to do so.)

On the issue of measurement, reporting and verification (MRV), the US submission suggests the need for provisions on MRV for: mitigation actions generally; on mitigation actions that are externally funded; on financial, technological and capacity-building support; and on various aspects of enabling environments in recipient-country Parties to promote external financial, technological and capacity-building support.

In its proposal, Japan submitted a draft Protocol to the AWG-LCA and the AWG-KP, "with a view to ensuring coherence and consistency" between the two processes. The Japanese submission states that the aim of Parties is for a long-term global goal of achieving a 50% reduction in global emissions of greenhouse gases from its current level by 2050 (and therefore not based on 1990 levels).

Japan also proposed that the peaking of the global emissions in the next 10 to 20 years should be pursued and all Parties should share the vision of how to pave the way to reduce global emissions by 2050 with flexibility and diversity of nationally appropriate actions. It calls for the recognition that all Parties take mitigation actions under an enlightened sense of solidarity in accordance with their common but differentiated responsibilities and respective capabilities.

In relation to mitigation obligations, Japan proposed quantified national emission reduction targets for Parties included in Annex 1 of the Convention (which are currently the developed countries). It states that these countries shall individually or jointly ensure that their aggregate emissions do not exceed in the commitment period 2013 to a year to be determined, their respective assigned amounts inscribed in a proposed Annex B, taking into account national and sectoral aspects.

For Parties who are not in Annex 1 (referring to the developing countries), the Japanese proposal suggests that they take nationally appropriate mitigation actions as described in an Annex C. It states that as part of the nationally appropriate mitigation actions, Parties are to develop and submit national action plans, including policies and measures for mitigation which shall include quantified elements to the extent possible. It also provides that Parties who have substantial contribution to the global emissions and have appropriate response capabilities, shall achieve their respective emissions intensity targets as described in Annex C with a view to limiting substantially their emission growth.

Japan stated that no later than one year prior to the start of the commitment period, for Parties who have their intensity targets inscribed in Annex C, a national system for the estimation of emissions be decided upon by the Conference of Parties. Further, such Parties are also required to submit annual inventories of emissions, including sectoral information.

Australia proposed two possible legal options for the post-2012 outcome. The first legal option consists of a single, new protocol that unifies action under the Convention and builds on the Kyoto Protocol (referred to as Model A). The second option entails two protocols in the form of an amended Kyoto Protocol and a new Protocol under the Convention (referred to as Model B). Australia stated that from the perspective of legal certainty, operational efficiency and simplicity, the most effective legal structure for a post-2012 outcome would be a single new protocol that unifies action under the Convention and builds on the Kyoto Protocol.

The Australian proposal said that a single treaty would accommodate the schedule and registry approach for capturing mitigation commitments and actions. The treaty could make provision for schedules to be adopted as annexes to the treaty, similar to those used in the World Trade Organisation and the Gothenburg Protocol (Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution).

These schedules could record a Party's mitigation commitments and actions and provide a legally-binding framework as necessary. Australia stated that if key developed-country mitigation commitments (under the amended Kyoto Protocol) were separated from commitments and actions relating to non-Parties to the Kyoto Protocol and advanced developing economies (under a new Protocol), it would be more difficult to assess comparability of effort, given that such assessment would take place across two negotiating fora.

Australia stated further that each developed-country Party would use a national schedule to commit to comparable mitigation efforts, including quantified emission limitation and reduction objectives (QELROs). These, it said, should be legally binding.

It also stated that schedules are a particularly effective way to reflect the separate circumstances and capacities of individual non-Annex 1 Parties. A variety of mitigation policies and measures may be registered. In addition to actions, schedules could also allow more advanced non-Annex 1 Parties to register mitigation commitments that may differ from economy-wide QELROs without joining Annex 1. Sectoral commitments may be one example. LDCs would not be expected to undertake commitments.

In its submission, New Zealand stated that it favours a single Protocol or other treaty instrument under the UNFCCC to combine the outcomes of the AWG-LCA and the AWG-KP. It also expressed interest in exploring the idea of national schedules to express the commitments and undertakings of individual country Parties.

The EU did not make a submission on the form of the legal outcome for Copenhagen. It however did provide a submission on various elements of the Bali Action Plan. It stated that as Parties move towards negotiating an agreed outcome in Copenhagen, the synergies between the AWG-LCA and the AWG-KP are increasingly important, as strict separation is not feasible.

On the long-term global goal, the EU stated that there was need to focus on the global emission reductions needed in line with the objective of keeping global mean temperature increase below 2 degrees C compared to pre-industrial levels. It therefore needs to be quantified in terms of a long-term global emissions reduction goal and a global mid-term pathway in terms of the time-frame for peaking of global emissions.

On mitigation, the EU reiterated that developed countries should commit to collectively reducing their emissions in the order of 30% by 2020 compared to 1990 levels. As for non-Annex 1 Parties, it called on countries whose levels of development and GDP per capita are comparable to those of the group of developed countries, notably OECD member countries, to consider making similar commitments in line with their responsibilities, capabilities and national circumstances.

It stated that each developing country shall elaborate a low-carbon development strategy, which contains the description of a long-term strategy for the low-carbon development of the developing country in the context of its broader sustainable development strategies, including an emission pathway, meaning an emission projection planned to be achieved with the implementation strategy.

The EU said that developing countries shall commit to integrate low-carbon development strategies covering all key emitting sectors into national and sectoral strategies, and have them in place as soon as possible and no later than 2012. For the LDCs, the low carbon development strategies should be supported financially and technically.

The EU stated that it would expect the ambition of propositions made by developing countries to be in line with their common but differentiated responsibilities and respective capabilities and that recent analysis indicates that for developing countries as a group, there needs to be a deviation in emissions in the order of 15% to 30% below business-as-usual by 2020. +