Beyond Kyoto: dilemmas of climate regulation and equity.

Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law - Discussion

This panel was convened at 9:00 AM on Thursday, April 10, by its chair, Daniel Bodansky of the University of Georgia School of Law, who introduced the panelists: Erik Haites of Margaree Consultants; Christiana Figueres of the Bureau of the UN Framework Convention on Climate Change; and David Hunter of American University Washington College of Law. An edited transcript of their remarks follows.


During the past year, climate change has catapulted into the top tier of international issues. A number of factors I think are responsible for this. Let me mention just two: first, the growing scientific consensus about the magnitude of the climate change problem, reflected in the most recent report of the Intergovernmental Panel on Climate Change (IPCC); second, the awarding of the Nobel Prize to the IPCC and to Al Gore last year.

On January 1, 2008, the Kyoto Protocors first commitment period began, which limits emissions from developed countries by certain specified amounts. Partly in anticipation of this event, an international market in carbon credits has developed in the past few years, worth billions of dollars.

But despite these positive developments, the international climate change regime faces at least two critical challenges. First, the Kyoto Protocol's emissions targets cover less than 1/3 of global emissions, due to the rejection of the Protocol by the United States and the fact that Kyoto covers emissions only from developed countries, not from rapidly growing developing countries like China and India. Second, the Kyoto Protocol's emissions target run for only five years, from 2008 until 2012; after that, Kyoto does not impose any specific limitations on emissions of either developed or developing countries.

These two problems have focused international attention on what to do in the post-2012 period, after the Kyoto Protocol's first commitment period runs out. Should the Protocol's basic approach be extended in a new commitment period? Should there be a new round of quantified absolute national emission targets? Or should the climate change regime take a different approach going forward? And how can its coverage be extended to all of the major economies in the world--all of the major emitters including, in particular, the United States, China and India.

The most recent Conference of the Parties (COP) to the UN Framework Convention in Climate Change (UNFCCC) was held in Bali, Indonesia, last December, and adopted the Bali Action Plan, which launches a comprehensive process to address the post-2012 period. The Bali Action Plan, in my view, represents an important step forward in at least two respects. First, the United States agreed to negotiate a new round of commitments--a significant shift by the Bush Administration. Second, developing countries agreed to discuss additional actions they could take that would be measurable, reportable, and verifiable. The Bali Action Plan negotiations were launched last week in Bangkok, and Erik Haites, one of our panelists, was there. Three additional rounds of negotiations are planned this year, and the negotiations are scheduled to conclude at the Copenhagen conference of the parties in December 2009 (although I think that is quite an ambitious schedule).

A multitude of ideas have been proposed about how to proceed in the negotiations. With us here today to discuss these issues are three very distinguished panelists: Erik Haites, Christiana Figueres and David Hunter.

* Associate Dean for Faculty Development and Emily and Ernest Woodruff Chair in International Law, The University of Georgia School of Law.


The fundamental challenge in getting a post-2012 agreement is getting an agreement that includes both the United States and China together. The United States and China represent 50 percent of global emissions, so any agreement that does not include both of them is far less effective than an agreement that has them included.

The U.S. position for at least a decade has been that it should not adopt commitments unless there are commitments of some sort for large, rapidly-growing developing countries, including China and India. So there is a big equity issue here, because the American emissions are on a per capita basis at least ten times those of China and India. Its per capita income is about five times to ten times the per capita income of China and India, and there is an agreement in the Framework Convention that countries will adopt commitments based on their different responsibilities and their respective capabilities.

So the agreement for post-2012 has to have something that can be seen as equitable by the United States and by China, and yet include both of them. The options are fundamentally that the commitments that China takes on are very different than those from the United States, and probably that there either is some system of "graduation or progression" in the Chinese commitments that then makes them equivalent to those of developed countries, for example, when they reach the appropriate per capita income. That becomes very complicated because China would want the protection that the developed countries meet their commitments in the interim, so that their commitment doesn't become binding despite non-compliance by the developed countries. It probably requires a time frame of more than five years because I don't think you could have that graduation in five years. So having a longer term agreement then raises other issues, such as how to adjust caps in the interim. The fundamental challenge of getting the United States and China into an agreement dramatically complicates the nature of that agreement if it's going to be successful.


I would like to speak mostly from the perspective of developing countries. I would like to make four points.

* The first is what I call the "tsunami" upon the G-77, the group of developing countries.

* Second, I'd like to address the issue of commitments.

* Third, equity.

* Fourth (although Erik definitely is the expert on this), financial flows.

On the first issue, the "tsunami" upon the G-77: it cannot be underestimated what the IPCC's conclusions last year have meant for the G-77. I think we knew that eventually, at some point in time, developing countries would have to assume more responsibility under the UNFCCC. The IPCC's categorical conclusion last year that, independent of all the best efforts of industrialist countries, those would not be enough to stabilize the climate system, means that developing countries have to begin to limit their growth in emissions and eventually cap their emissions. This is a challenge unlike any other undertaken by developing countries and it was very evident in Bali, as it was in Bangkok, that particularly the large developing countries are having a very hard time digesting this news and beginning to move forward in the regime by assuming further responsibilities.

That, of course, is not made easier by the fact that the United States is not participating currently in the Kyoto Protocol, which raises the whole equity issue for the G-77. It is also not made easier by the fact that the G-77, although certainly one negotiating block, is very, very heterogeneous. So you have countries as different as China and Niue in one group of countries, which makes it very difficult for them to continue to negotiate as a group and to assume responsibilities in a differentiated fashion, which is clearly what we have to reach.

To my second point on commitments: the term "commitments" actually has a plethora of possible definitions and possible ways of moving forward. Fortunately in the Bali Action Plan, the concept of commitments has been refrained as actions for developing countries, which have to be measurable, verifiable, and reportable (MVR); that is the big question for developing countries. What does MVR mean? Obviously there are going to have to be options. There are going to have to be, not just one interpretation, but several options for the different states and the different conditions in developing countries. It also will have to be clear how those measurable, verifiable and reportable actions are completely different from what the United States is going to do. And thirdly, what developing countries do will have to be dependent and contingent upon what the Annex I industrialized countries are doing. So that is not an easy agenda to deal with.

On the equity issue, obviously we cannot proceed with a regime that has the structure of the Kyoto Protocol based on national absolute targets. That would be completely unethical and not fair to developing countries. Some brilliant economist is going to have to come up with some fancy algorithm that involves emissions, GDP, population, and perhaps the Human Development Index. And not only will there have to be an algorithm, but there will have to be a menu of different options for countries that reach a certain threshold of some kind, composed of these factors, to then assume XYZ options of commitments.

Finally, financial flows. There is a run now, an impressive run, to put money on the table for mitigation and adaptation activities in developing countries. And that is certainly necessary and appreciated. However, the run is toward climate investment in the five largest developing countries, in what are called the Plus 5 Countries. And the danger is that, while that is necessary, if we make climate investment only in those five countries, we will repeat the pattern that we have already repeated over the past 150 years where development is concentrated in only a few large economies. All of a sudden, investment is going to go again only to the large economies leaving the small economies behind. So the challenge for financial flows is to leave no engaged country behind, and to ensure that the financial flows have an incentive for small...

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