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Balancing Effectiveness and Fairness in the Redesign of the Climate Change Regime

Published online by Cambridge University Press:  11 February 2011

JORGE E. VIÑUALES
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Abstract

Since its modern inception in the 1960s, international environmental law (IEL) has faced three main challenges: (i) justifying the need for an international regulation of environmental issues (legitimacy); (ii) finding mechanisms to ensure compliance with IEL (effectiveness); and (iii) distributing equitably the benefits and burden of environmental protection (fairness). While it is nowadays possible to say that the legitimacy of IEL is no longer in question, the need to respond to challenges (ii) and (iii) has never been more pressing. This is particularly the case in the context of the redesign of the climate change regime (CCR), as the responses to (ii) and (iii) may conflict with each other. Industrialized countries who historically contributed the most to the artificial increase in greenhouse gases (GHGs) in the atmosphere have been matched, and even surpassed, in their level of GHG emissions by countries such as China, India, or Brazil, who are now being pressed to undertake real emissions-reduction commitments. Historically, however, none of these latter benefited from the emission laxity characterizing the nineteenth century and most of the twentieth century to further their development. While imposing specific emissions-reduction commitments on them would seem unfair, such commitments are nevertheless critical for the effectiveness of the regime both directly and indirectly (as without such commitments, industrialized countries may be reluctant to join or uphold a regime). The purpose of this article is to spell out in an orderly analytical manner the types of issue that must be addressed in seeking a balanced solution. This type of analysis can be conducted from several perspectives. The most directly relevant disciplines to deal with fairness considerations are admittedly ethics and political philosophy, and there is indeed a growing literature on climate fairness. Although this literature is briefly surveyed, the article focuses on the fairness dimensions of the existing legal arrangements or those currently being negotiated. There is a considerable gap between the theoretical approaches to climate fairness and the manner in which considerations of fairness operate in practice. This gap is mainly due to the need to account for political considerations or, in other terms, to balance fairness with political effectiveness. When such considerations are taken into account, the picture that emerges is quite different. The CCR is not built upon a single approach to fairness. Rather, fairness considerations are integrated through a patchwork of criteria used to distribute different objects (burden of emission reductions, emission rights, contribution to financial and technological assistance, and access to such assistance) among different actors situated at different levels.

Keywords

Cancúnclimate changeclimate fairnessCopenhagendistributive justice
Type
CURRENT LEGAL DEVELOPMENTS
Information
Leiden Journal of International Law , Volume 24 , Issue 1 , March 2011 , pp. 223 - 252
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 As noted in a statement from the Centre for Science and Environment (CSE), a Delhi-based think-tank, published at the time of the American rejection of the Kyoto Protocol: ‘The total carbon dioxide emissions from one U.S. citizen in 1996 were 19 times the emissions of one Indian. U.S. emissions in total are still more than double those from China. At a time when a large part of India's population does not even have access to electricity, Bush would like this country to stem its “survival emissions”, so that industrialized countries like the U.S. can continue to have high “luxury emissions”. This amounts to demanding a freeze on global inequality, where rich countries stay rich, and poor countries stay poor, since carbon dioxide emissions are closely linked to GDP growth.’ See CSE, ‘The Leader of the Most Polluting Country in the World Claims Global Warming Treaty Is “Unfair” Because It Excludes India and China’ (2001), quoted in Steve Vanderheiden, ‘Climate Change, Environmental Rights, and Emission Shares’, in Steve Vanderheiden (ed.), Political Theory and Global Climate Change (2008), 43, at 44–5.

2 Editorial, ‘Heating Up or Cooling Down?’, The Economist, 13 June 2009, 53. The important relationship between fairness and efficacy is also noted by Steve Vanderheiden in an essay summarizing his recent monograph on ‘atmospheric justice’:

[N]ormative concerns for fairness have featured prominently throughout the global climate policy process, and debates over the treaty's fairness are inseparable from those about its efficacy, because no unfair global climate regime stands a chance of gaining the requisite assent of the world's nations and no ineffective agreement can mitigate the unfairness of an environmental problem that is disproportionately caused by the world's affluent while expected to visit disproportionately harm on the world's poor.’

See Vanderheiden, supra note 1, at 44.

3 See, e.g., Gardiner, S., ‘Ethics and Global Climate Change’, (2004) 114 Ethics 555CrossRefGoogle Scholar, at 578–83; P. Singer, ‘One Atmosphere’, in P. Singer (ed.), One World: The Ethics of Globalization (2002); D. Jamieson, ‘Climate Change and Global Environmental Justice’, in P. Edwards and C. Miller (eds.), Changing the Atmosphere: Expert Knowledge and Global Environmental Governance (2001), 287; Traxler, M., ‘Fair Chore Division for Climate Change’, (2002) 28 Social Theory and Practice 101CrossRefGoogle Scholar; Shue, H., ‘Subsistence Emissions and Luxury Emissions’, (1993) 15 Law and Policy 39CrossRefGoogle Scholar; Beckerman, W. and Pasek, J., ‘The Equitable International Allocation of Tradable Carbon Emission Permits’, (1995) 5 Global Environmental Change 405CrossRefGoogle Scholar; M. Grubb, ‘Seeking Fair Weather: Ethics and the International Debate on Climate Change’, (1995) 71 IA 463; Neumayer, E., ‘In Defence of Historical Accountability for Greenhouse Gas Emissions’, (2000) 33 Ecological Economics 185CrossRefGoogle Scholar; S. Vanderheiden, Atmospheric Justice: A Political Theory of Climate Change (2008).

4 For such a history, see P. Sand, ‘The Evolution of International Environmental Law’, in D. Bodansky et al. (eds.), The Oxford Handbook of International Environmental Law (2007), 29.

5 See, e.g., Trail Smelter Arbitration (USA v. Canada), III RIAA 1905–1982 (awards of 16 April 1938 and of 11 March 1941); Lake Lanoux Arbitration (Spain v. France), XII RIAA 281–317 (award of 16 November 1957); 1902 Convention for the Protection of Birds Useful to Agriculture, 102; British and Foreign State Papers, 969; 1911 Convention between the United States, Great Britain, Japan and Russia Providing for the Preservation and Protection of the Fur Seals, 37 United States Statutes at Large 1542; 1946 International Convention for the Regulation of Whaling with Schedule of Whaling Regulations, 161 UNTS 361.

6 Report of the United Nations Conference on the Human Environment, UN Doc. A/CONF.48/14/Rev.1 (1973), at 2–7; UN Doc. A/CONF.48/14, at 2–65; and (1972) 11 ILM 1416. The Stockholm Conference epitomizes the first phase of international environmental regulation, illustrated by several instruments, such as: the 1972 Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft 932 UNTS 3 (later modified quite fundamentally in 1996); 1973 International Convention for the Prevention of Pollution from Ships (MARPOL), (1973) 12 ILM 1319 (as modified by the Protocol of 1978 relating thereto); the 1971 Convention on Wetlands of International Importance especially as Waterfowl Habitat, 996 UNTS 245; the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage, 1037 UNTS 151; and the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 983 UNTS 243.

7 From a conceptual standpoint, the main achievement of the Rio Conference was the introduction of the concept of sustainable development. The origins of this concept are to be found in the work of both non-governmental and inter-governmental organizations. See, e.g., International Union for Conservation of Nature and Natural Resources (IUCN), United Nations Environment Programme (UNEP), World Wildlife Fund (WWF), World Conservation Strategy: Living Resource Conservation for Sustainable Development (1980); Report of the World Commission on Environment and Development, Our Common Future, UN Doc. A/42/427 (1987) (commonly referred to as the ‘Brundtland Report’), Annex. Also, the Rio Conference resulted in the adoption of two major treaties, in addition to other important instruments, namely the 1992 United Nations Framework Convention on Climate Change, (1992) 31 ILM 849 (UNFCCC or Convention); and the 1992 Convention on Biological Diversity, (1992) 31 ILM 82. Following the Rio Conference, two other important treaties were adopted, namely the 1994 United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, UN Doc. A/AC.241/15/Rev.7 (1994), (1994) 33 ILM 1328; and the 1995 Agreement for the Implementation of the Provisions of the United Nations Conventions on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 2167 UNTS 88. In the last decade, the attention of states has focused more on the implementation of existing instruments than on the development of new treaties, as evidenced by the texts adopted at the 2002 World Summit on Sustainable Development, in Johannesburg (one of the main instruments adopted at the WSSD was specifically entitled ‘Plan of Implementation’, paras. 1–2 of which referred to the principles and programmes of the Rio Conference and added the need to adopt ‘concrete actions and measures’), and the recent resolution adopted by the UN General Assembly to convene what is commonly referred to as the ‘Rio plus 20 Conference’, scheduled to take place in Rio de Janeiro in 2012 (see UN Doc. A/RES/64/236). Para. 20(a) of this resolution identifies, as two main themes of the upcoming conference, the move to a ‘green economy’ and the ‘institutional framework’ for sustainable development.

8 For an analysis of how scientific uncertainty has been handled in the CCR, see generally S. Weart, The Discovery of Global Warming (2009); and J. Vinuales, ‘Legal Techniques for Dealing with Scientific Uncertainty in Environmental Law’, (2010) 43 Vand. JTL 437.

9 Intergovernmental Panel on Climate Change (IPCC), Fourth Assessment Report: Climate Change (2007).

10 See generally N. Oreskes and E. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (2010), Chapter 6.

11 UN Doc. A/RES/2849 (1971).

12 Ibid., para. 11.

13 See the Brundtland Report, supra note 7.

14 R. Benedick, Ozone Diplomacy (1998), 241.

15 D. Bodansky, ‘The United Nations Framework Convention on Climate Change: A Commentary’, (1993) 18 Yale JIL 451, at 498.

16 See generally, e.g., C. Stone, ‘Ethics and International Environmental Law’, in Bodansky et al., supra note 4.

17 See, e.g., P. Pettit, ‘Consequentialism’, in Peter Singer (ed.), A Companion to Ethics (1991), 230.

18 See, e.g., R. Sullivan, Immanuel Kant's Moral Theory (1989); J. Waldron, Theories of Rights (1984); R. Brandt, Morality, Utilitarianism, and Rights (1992).

19 See, e.g., G. Pence, ‘Virtue Theory’, in Singer, supra note 17, at 249.

20 See, e.g., R. Goodin, Utilitarianism as a Public Philosophy (1995).

21 See, e.g., I. Kant, Foundations of the Metaphysics of Morals: Text and Critical Essays (ed. R. P. Wolff) (1969); Critique of Practical Reason (trans. L. White Beck) (1960); L. White Beck, A Commentary on Kant's ‘Critique of Practical Reason’ (1960).

22 See, e.g., J. Locke, Second Treatise of Government (ed. C. Macpherson) (1980); J. Simmons, The Lockean Theory of Rights (1992); J. Waldron, supra note 18.

23 See, e.g., Aristotle, The Nichomachean Ethics (eds. J. Ackrill and J. Urmson) (1998); P. Foot, Virtues and Vices and Other Essays in Moral Philosophy (1978); A. MacIntyre, After Virtue (1984).

24 Although one may also link them to education and lifestyle, which are critical for a long-term solution to the challenges posed by climate change as well as, more generally, to most environmental challenges. One of the commitments adopted by states under the UNFCCC is precisely to ‘[p]romote and cooperate in education, training and public awareness related to climate change and encourage the widest participation in this process, including that of non-governmental organizations’: UNFCCC, Art. 4(1)(i).

25 G. Scarre, Utilitarianism (1996), 122; Harsanyi, J., ‘Rule Utilitarianism, Equality, and Justice’, (1985) 2 Social Philosophy and Politics 115CrossRefGoogle Scholar, at 125–6.

26 J. Rawls, The Law of Peoples (2002).

27 See, e.g., the essays collected in P. Helm (ed.), Divine Commands and Morality (1981); R. Tuck, Natural Rights Theories: Their Origin and Development (1979).

28 See, e.g., J. Rawls, A Theory of Justice (1971); J. Habermas, Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (1992); the essays contained in K. F. Rohl and S. Machura (eds.), Procedural Justice (1997); and Lafont, C., ‘Procedural Justice? Implications of the Rawls–Habermas Debate for Discourse Ethics’, (2003) 29 Philosophy and Social Criticism 163CrossRefGoogle Scholar.

29 J.-F. Lyotard, The Postmodern Condition (1979).

30 See, e.g., Michael Sandel, Liberalism and the Limits of Justice (1981); A. MacIntyre, Whose Justice? Which Rationality? (1988); C. Taylor, Sources of the Self: The Making of the Modern Identity (1989); Walzer, M., ‘The Communitarian Critique of Liberalism’, (1990) 18 Political Theory 6CrossRefGoogle Scholar; M. Walzer, Thick and Thin (1994).

31 M. Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983).

32 According to Walzer, ibid., at 29–30:

The only plausible alternative to the political community is humanity itself, the society of nations, the entire globe. But were we to take the globe as our setting, we would have to imagine what does not yet exist: a community that included all men and women everywhere. We would have to invent a set of common meanings for these people, avoiding if we could the stipulation of our own values. And we would have to ask the members of this hypothetical community (or their hypothetical representatives) to agree among themselves on what distributive arrangements and patterns of conversion are to count as just.

33 See Gardiner, supra note 3, at 583–4, and the references to other authors cited therein; see also Singer, supra note 3; and Jamieson, also supra note 3.

34 See, e.g., K. Smith, ‘The Natural Debt: North and South’, in T. W. Giambelluca and A. Henderson-Sellers (eds.), Climate Change: Developing Southern Hemisphere Perspectives (1996), Chapter 16.

35 For the current model, see the Global Commons Institute's website, available at www.gci.org.uk. The convergence side of the C&C model is flexible enough to introduce several considerations in defining the rate and pace of convergence. As a result, it could also be seen as an expression of other approaches to climate ethics.

36 L. Raymond, ‘Allocating the Global Commons: Theory and Practice’, in Vanderheiden, supra note 1, at 5–6.

37 Ibid., at 6–7, and references cited therein. See also D. Victor, Climate Change: Debating America's Policy Options (2004); Rose, A. and Stevens, B., ‘The Efficiency and Equity of Marketable Permits for CO2 Emissions’, (1993) 15 Resource and Energy Economics 117CrossRefGoogle Scholar.

38 See, e.g., Traxler, supra note 3.

39 Ibid., at 101.

40 Shue, supra note 3.

41 Vanderheiden, supra notes 1 and 3.

42 Vanderheiden, supra note 1, at 47.

43 Ibid., at 63.

44 As noted by Bodansky, supra note 15, at 498:

While this paragraph contains much that is of interest to developing countries, it represents a substantial compromise on their part. Developing countries had sought inclusion of the ‘main responsibility’ principle, which posits that since the climate change problem results primarily from the overconsumptive and profligate lifestyles of developed countries, developed countries bear the main responsibility for combating it. The first clause of paragraph 3, reflecting only the first half of this principle, appears as a neutral factual statement, severed from the corollary that ‘developed country parties should take the lead in combating climate change’, which appears only later in the Convention. Similarly, the reference in the second clause to ‘per capita emissions’ is all that remains of an Indian proposal that the Convention should promote the convergence of greenhouse gas emissions at a common per capita level. Finally, the concluding clause, referring to the growth in emissions of developing countries, was originally proposed as a principle and phrased in mandatory rather than descriptive terms.

45 During the negotiations, there was agreement between developed and developing countries that developed countries ‘should take the lead in combating climate change and the adverse effects thereof’, as noted in Art. 3(1). Both groups disagreed, however, on the reasons why developed countries were to take the lead, with developing countries referring to the historical emissions argument and developed countries referring to their stronger financial and technological capabilities: Bodansky, supra note 15, at 502–3.

46 See, e.g., the different regimes set out by UNFCCC Art. 4(1)–(2): see also Arts. 4(3) and (5), 7, 8, and 9.

47 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 2303 UNTS 148 (Kyoto Protocol), Art. 3(1) and Annex B.

48 Ibid., Art. 10.

49 The Berlin Mandate: Review of the adequacy of Article 4, paragraph 2 (a) and (b), of the Convention, including proposals related to a protocol and decisions on follow-up, Dec. 1/CP.1, UN doc. FCCC/CP/1995/7/Add.1 (1995), at 4, para. 1(d).

50 Ibid., para. 2(b).

51 J. Depledge, ‘Tracing the Origins of the Kyoto Protocol: An Article-by-Article Textual History’, Technical Paper, UN Doc. FCCC/TP/2000/2 (2000), para. 134.

52 Ibid., paras. 135–137.

53 Under UNFCCC Art. 4(1):

All Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall:

  1. (a)

    (a) Develop, periodically update, publish and make available to the Conference of the Parties, in accordance with Article 12, national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, using comparable methodologies to be agreed upon by the Conference of the Parties;

  2. (b)

    (b) Formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, and measures to facilitate adequate adaptation to climate change;

  3. (c)

    (c) Promote and cooperate in the development, application and diffusion, including transfer, of technologies, practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases not controlled by the Montreal Protocol in all relevant sectors, including the energy, transport, industry, agriculture, forestry and waste management sectors;

  4. (d)

    (d) Promote sustainable management, and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol, including biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems;

  5. (e)

    (e) Cooperate in preparing for adaptation to the impacts of climate change; develop and elaborate appropriate and integrated plans for coastal zone management, water resources and agriculture, and for the protection and rehabilitation of areas, particularly in Africa, affected by drought and desertification, as well as floods;

  6. (f)

    (f) Take climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies and actions, and employ appropriate methods, for example impact assessments, formulated and determined nationally, with a view to minimizing adverse effects on the economy, on public health and on the quality of the environment, of projects or measures undertaken by them to mitigate or adapt to climate change;

  7. (g)

    (g) Promote and cooperate in scientific, technological, technical, socio-economic and other research, systematic observation and development of data archives related to the climate system and intended to further the understanding and to reduce or eliminate the remaining uncertainties regarding the causes, effects, magnitude and timing of climate change and the economic and social consequences of various response strategies;

  8. (h)

    (h) Promote and cooperate in the full, open and prompt exchange of relevant scientific, technological, technical, socio-economic and legal information related to the climate system and climate change, and to the economic and social consequences of various response strategies;

  9. (i)

    (i) Promote and cooperate in education, training and public awareness related to climate change and encourage the widest participation in this process, including that of non- governmental organizations; and

  10. (j)

    (j) Communicate to the Conference of the Parties information related to implementation, in accordance with Article 12.

54 Kyoto Protocol Arts. 2 and 3 (applicable to Annex I countries), and Art. 10 (applicable to both Annex I and non-Annex I countries).

55 Ibid., Art. 4.

56 See M. Grubb, C. Vrolijk, and D. Brack, The Kyoto Protocol: A Guide and Assessment (1999), 122 ff.

57 At the level of the European Community, one such arrangement is the European Emissions Trading Scheme (ETS) established in 2003 by Directive 2003/87/EC, and significantly modified in 2009 by Directive 2009/29/EC. The Kyoto Protocol has sought to introduce this additional degree of liberty also for countries that have not availed themselves of the ‘bubble’ mechanism, through the ‘Joint Implementation’ mechanism established in Art. 6.

58 See generally D. Bodansky, International Sectoral Agreements in a Post-2012 Climate Framework (2007). See also M. Mukahanana-Sangarwe, Second Iteration of the Text to Facilitate Negotiations prepared by the Chair of the AWG-LCA, UN Doc. FCCC/AWGLCA/2010/8 (2010) (Working Document), Chapters I(C)(4) and IX.

59 The term ‘Parties included in Annex I’ appears four times in the text of the Convention, twice in connection with substantive commitments (Art. 4(2) and (6)) and twice in connection with procedural commitments (Art. 12(2) and (5)). By contrast, the term ‘Parties not included in Annex I’ appears only once, in connection with the possibility offered to such states to ‘upgrade’ their obligations to the level of those of ‘Parties included in Annex I’ (Art. 4(2)(g)).

60 The term ‘Party (Parties) included in Annex I’ appears 36 times, with some iterations occurring within provisions (Arts. 1(7), 2(1)–(9) and (13)–(14), 4(1), 5(1), 6(1) and (3)–(4), 7(1)–(4), 8(1), 10(b)(ii), 12(2), (3)(b), 25(1) and (2)). By contrast, the term ‘Parties not included in Annex I’ appears only three times (Arts. 10, and 12(2) and (3)).

61 This category of states has some additional flexibility in meeting the quantified targets set in Annex B of the Kyoto Protocol. According to Art. 4(6) of the Convention, such flexibility is provided ‘in order to enhance the ability of these Parties to address climate change, including with regard to the historical level of anthropogenic emissions of greenhouse gases not controlled by the Montreal Protocol chosen as reference’. One important issue in respect of which such additional flexibility has been granted is the choice of base year or period for implementation of the emissions-reduction commitments under the Kyoto Protocol. See Communications from Parties included in Annex I to the Convention: guidelines, schedule and process for consideration, Dec. 9/CP.2, UN Doc. FCCC/CP/1996/15/Add.1 (1996), at 15, para. 5 (setting base years other than 1990 for Bulgaria, Hungary, Poland, and Romania); see also Kyoto Protocol, Art. 3(5).

62 UNFCCC Art. 4(3)–(5); Kyoto Protocol, Art. 11(2)–(3).

63 UNFCCC Art. 4(4).

64 Ibid., Art. 4(8)(a).

65 Ibid., Art. 4(8)(b).

66 Ibid., Art. 4(8)(c).

67 Ibid., Art. 4(8)(d).

68 Ibid., Art. 4(8)(h).

69 Ibid., Arts. 4(9) and 12(5); Kyoto Protocol, Arts. 2(3) and 3(14).

70 F. Yamin and J. Depledge, The International Climate Change Regime (2004), 30–48.

71 Ibid., at 272 ff. Yamin and Depledge note, however, that a number of non-Annex I parties that would technically be eligible to receive funding from the Global Environmental Facility have refrained from seeking funding. These include the Republic of Korea and Singapore.

72 Letter from the Central Asia, Caucusus and Moldova Countries on their Status under the Convention dated 27 July 2001, annexed to a Note by the Secretariat (dated 11 October 2001), UN Doc. FCCC/CP/2001/12.

73 Ibid., at 3.

74 A draft note by the chair of the SBI concluded that ‘the CACAM countries by virtue of their status as Parties not included in Annex I to the Convention were eligible for funding under the GEF’ and recommended that ‘in future all references to Parties in decisions of the Conference of the Parties should follow the language of the Convention, for example “Parties included in Annex I” (Annex I Parties), “Parties included in Annex II” (Annex II Parties) and “Parties not included in Annex I” (non-Annex I Parties)’: Request from a Group of Countries of Central Asia and the Caucasus, Albania and the Republic of Moldova Regarding Their Status under the Convention: Draft Conclusions Proposed by the Chair, UN Doc. FCCC/SBI/2002/L.14, paras. 2 and 5. On this point, and the relationship with the GEF's funding policies, see Yamin and Depledge, supra note 70, at 274–5.

75 Dec. 5/CP.11, UN Doc. FCCC/CP/2005/5/Add.1, at 15, para. 2; Dec. 3/CP.12, UN Doc. FCCC/CP/2006/5/Add.1, at 9, paras. 1(e) and 2(a)–(c); Dec. 7/CP.13, UN Doc. FCCC/CP/2007/6/Add.1, at 33, paras 1(e)–(l) and 2(a) and (b); Dec. 4/CP.14, UN Doc. FCCC/CP/2008/7/Add.1, at 6, para. 1(d) (requesting that the GEF ‘continue to improve access for all developing countries, in particular least developed countries, small island developing States and countries in Africa, to Global Environment Facility resources’).

76 Draft Implementing Agreement under the Convention prepared by the Government of the United States of America (draft of 6 June 2009), UN Doc. FCCC/CP/2009/7 (US Draft Protocol).

77 Ibid., Art. 2(1)(a).

78 Ibid., Art. 2(1)(b).

79 Ibid., Art. 2(2).

80 Ibid., Art. 2(3)(a).

81 Ibid., Art. 2(3)(b).

82 Ibid., Art. 2(4).

83 Dec. 2/CP.15, UN Doc. FCCC/CP/2009/11/Add.1, Annex (Copenhagen Accord).

84 Ibid., para. 1.

85 Ibid., para. 2.

86 Ibid., para. 5.

87 The COP merely took note of the Copenhagen Accord. See supra note 83.

88 See the list of ‘Communications received from Parties in relation to the listing in the chapeau of the Copenhagen Accord’ on the UNFCCC website, available at http://unfccc.int/meetings/items/5276.php.

89 Working Document, supra note 58.

90 Ibid., Chapter I(G)(29).

91 Ibid., Chapter I(G)(34) and (35). Although the foundations for the measurement, reporting, and verification of nationally appropriate mitigation actions by developing countries had been laid out already in the Bali Mandate: see Bali Action Plan, Dec. 1/CP.13, UN Doc. FCCC/CP/2007/6/Add.1, para. 1(b)(ii)–(iii)). This explicit reference to MRV ‘at the international level’ seems to be the result of the proposal made by the US Secretary of State, Hillary Rodham Clinton, on the penultimate day of the Copenhagen conference. See J. M. Broder and E. Rosenthal, ‘Obama Has Goal to Wrest a Deal in Climate Talks’, New York Times, 17 December 2009, available online at www.nytimes.com/2009/12/18/science/earth/18climate.html (accessed on 30 October 2010).

92 Working Document, supra note 58, Chapter I(G)(48).

93 Dec. 13/CMP.1, UN Doc. FCCC/KP/CMP/2005/8/Add.2.

94 UNFCCC preamble, noting ‘that the largest share of historical and current global emissions of greenhouse gases has originated in developed countries’.

95 UNFCCC, Art. 3(1), stating the principle of common but differentiated responsibilities and exhorting developed-country parties to ‘take the lead in combating climate change and the adverse effects thereof’.

96 Working Document, supra note 58, Chapter I, preamble: ‘Acknowledging that the largest share of historical global emissions of greenhouse gases has originated in developed countries and that, owing to this historical responsibility, developed country Parties must take the lead in combating climate change and the adverse effects thereof.’

97 UNFCCC, Art. 2.

98 Copenhagen Accord, supra note 83, para. 1.

99 Dec. 3/CP.3, UN Doc. FCCC/CP/1997/7/Add.1, at 32.

100 See generally Depledge, J., ‘Striving for No: Saudi Arabia in the Climate Change Regime’, (2008) 8 Global Environmental Politics 9CrossRefGoogle Scholar.

101 Yamin and Depledge, supra note 70, at 231.

102 Copenhagen Accord, supra note 83, para. 3, stating that:

Adaptation to the adverse effects of climate change and the potential impacts of response measures is a challenge faced by all countries. Enhanced action and international cooperation on adaptation is urgently required to ensure the implementation of the Convention by enabling and supporting the implementation of adaptation actions aimed at reducing vulnerability and building resilience in developing countries, especially in those that are particularly vulnerable, especially least developed countries, small island developing States and Africa. We agree that developed countries shall provide adequate, predictable and sustainable financial resources, technology and capacity-building to support the implementation of adaptation action in developing countries. (emphasis added)

103 Working Document, supra note 58, Chapter II, para. 1, where it is apparent that the establishment of the link in the text devoted to ‘Enhanced action on adaptation’ is still an open option:

[The Conference of the Parties, . . . 1. [Agrees that adaptation to the adverse effects of climate change [and/or to the impact of the implementation of response measures] is a challenge faced by all Parties and that enhanced action and international cooperation on adaptation is urgently required to enable and support the implementation of adaptation actions aimed at reducing vulnerability and building resilience in developing country Parties, taking into account the urgent and immediate needs of developing countries that are particularly vulnerable to the adverse effects of climate change, especially the least developed countries and small island developing States, and further taking into account the needs of countries in Africa affected by drought, desertification and floods.

The use of square brackets indicates wording in the Working Document which is open for negotiation.

104 UNFCCC, Preamble:

Noting . . . per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs.’

105 Working Document, supra note 58, Chapter I, Preamble:

Reaffirming that social and economic development and poverty eradication are the first and overriding priorities of developing country Parties, and also that the share of global emissions originating in developing countries will grow to meet their social and development needs.

106 Ibid., Part II, Section B.

107 Some developing countries, including China and India, are adopting this approach in their voluntary emissions target: see below, note 109. This suggests that the type of approach favoured by a given country is largely based on its own level of emissions.

108 supra note 1.

109 Letter of 28 January 2010 to the Executive Secretary of the UNFCCC from Su Wei, director general of the Department of Climate Change at the National Development and Reform Commission of China, available online at http://unfccc.int/files/meetings/application/pdf/chinacphaccord_app2.pdf (accessed 30 October 2010); letter of 30 January 2010 to the executive secretary of the UNFCCC from Rajani Rajan Rashmi, joint secretary of the Indian Ministry of the Environment and Forests, available online at http://unfccc.int/files/meetings/application/pdf/indiacphaccord_app2.pdf (accessed 30 October 2010).

110 See, however, the exceptions to this rule discussed by Yamin and Depledge in connection with Art. 12 of the Kyoto Protocol and the replenishment of the GEF: Yamin and Depledge, supra note 70, at 266–7.

111 An important nuance regarding this proposition must be introduced in connection with the situation of ‘Parties included in Annex I that are undergoing the process of transition to a market economy’. It could be argued that the inclusion of such parties in Annex I of the UNFCCC was at least partly motivated by their desire to profit from the regime being established, specifically by selling their excess of emission rights to developed countries. While there may be some truth in this argument, one must not overlook that, at the time of their listing in Annex I of the UNFCCC, the possibility of profiting from the trading of emission rights was entirely speculative, as the Kyoto Protocol had still to be negotiated.

112 Proposal to amend the lists in Annexes I and II to the Convention by removing the name of Turkey: Review of information and possible decisions under Article 4, paragraph 2(f) of the Convention, UN Doc. FCCC/CP/2000/5/Add.1, at 23, paras. 83–85; Dec. 26/CP.7, UN Doc. FCCC/CP/2001/13/Add.4, at 5.

113 According to the Instrument for the Establishment of the Restructured Global Environmental Facility, para. 9(b), available at www.thegef.org/gef/sites/thegef.org/files/publication/GEF_Instrument3.pdf:

GEF grants for activities within a focal area addressed by a convention referred to in paragraph 6 but outside the framework of the financial mechanism of the convention, shall only be made available to eligible recipient countries that are party to the convention concerned.

See also the discussion in Yamin and Depledge, supra note 70, at 275–6.