¹ GA Res 44/228 (1989)

² UNDP, Human Development Report, 2007–8, Fighting Climate Change: Human Solidarity in a Divided World, online, http://hdr.undp.org/en/reports/global/hdr2007–2008/

³ S Solomon et al., eds., Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2007)

⁴ Ibid.

⁵ Ibid.

⁶ Ibid.

⁷ Summary for Policy Makers (n 2).

⁸ Ibid.

⁹ Stern Review on the Economics of Climate Change (2006) online, http://www.hm-treasury.gov.uk/independent_reviews/stern_review_economics_climate_change/sternreview_index.cfm

¹⁰ United Nations Framework Convention on Climate Change, 29 May 1992, A/AC.237/18 (Part II)/Add. 1, reprinted in (1992) 31 ILM 849 [hereinafter FCCC]

¹¹ Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, FCCC/CP/1997/L.7/add.1, reprinted in (1998) 37 ILM 22 [hereinafter the Kyoto Protocol].

¹² There are 192 Parties to the FCCC and 182 Parties to the FCCC have ratified the Kyoto Protocol, online, http://www.unfccc.int.

¹³ The FCCC and the Kyoto Protocol are serviced by a Secretariat based in Bonn, staffed with over 200 international civil servants, online, http://unfccc.int/secretariat/items/1629.php.

¹⁴ Through Joint Implementation, the Clean Development Mechanism and Emissions Trading, Articles 6, 12 and 17 Kyoto Protocol.

¹⁵ At the seventh FCCC COP, Parties adopted the Marrakech Accords which laid down operating rules for the mechanisms and, accounting procedures for emissions reduction credits. They established a compliance system and set out the consequences for non-compliance. See Report of the Conference of the Parties on its Seventh Session, Addendum, Part two, Action taken by the Conference of the Parties, Volume I FCCC/CP/2001/13/Add.1 (2002); See also Volume II FCCC/CP/2001/13/Add.2 (2002); Volume III FCCC/CP/2001/13/Add.3 (2002); and Volume IV FCCC/CP/2001/13/Add.4 (2002).

¹⁶ Article 3, Kyoto Protocol; Article 4(2) (b), FCCC, also contained a target and a timeframe, albeit not a country-specific one as in the Kyoto Protocol.

¹⁷ Text Of A Letter From The President To Senators Hagel, Helms, Craig, And Roberts, The White House, Office of the Press Secretary, 13 March, 2001.

¹⁸ This section draws on L Rajamani, Differential Treatment in International Environmental Law (OUP, 2006).

¹⁹ Article 3, FCCC; the climate regime is widely considered to be the ‘clearest attempt to transform, activate and operationalize common but differentiated responsibility from a legal concept into a policy instrument.’ See Remarks by Christopher Joyner, in C Joyner, Transcript of Panel Discussion on ‘Common but Differentiated Responsibility,’ Am. Soc'y Int'l L. Proc. (2002); See also (n 18), Chapter 5.

²⁰ See B Kellersmann, Die Gemeinsame, Aber Differenzierte Verantwortlichkeit Von Industriestaaten Und Entwicklungsländern Für Den Schutz Der Globalen Umwelt 335 (English Summary) (2000).

²¹ International Law Association, International Committee On Legal Aspects Of Sustainable Development, Report Of The Sixty-Sixth Conference 116 (1995).

²² In addition to the international law obligation to develop in a sustainable manner (Gabcikovo—Nagymaros (Hungary/Slovakia), 1997 ICJ Rep 15, 24, climate-specific mandates exist in the FCCC, including in the Preamble, and Articles 3 (4) and 4(1), FCCC. Article 3(4), FCCC, reads, ‘[P]arties have a right to and should promote sustainable development…’

²³ Article 4(1) (f), FCCC (requiring all countries to take climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies).

²⁴ The IPCC noted that ‘the level of energy intensities in developing countries today is generally comparable with the range of the now-developed countries when they had the same level of per capita GDP.’ See Nebojsa Nakicenovic and Rob Swart eds., IPCC, Special Report on Emissions Scenarios (2000), section 2.4.10

²⁵ Article 4(1) (a) FCCC.

²⁶ Article 4(1) (b) FCCC.

²⁷ Article 4(2) (f) FCCC.

²⁸ Article 4(2) (a) and (b) FCCC.

²⁹ Article 4(2) (b) FCCC.

³⁰ Article 4(7) FCCC [emphasis added].

³¹ Article 5(5), The Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, reprinted in 26 ILM 1550 (1987) [hereinafter Montreal Protocol].

³² Article 20(4), United Nations Framework Convention on Biological Diversity, 2 June 1992, reprinted in 31 ILM 818 (1992).

³³ Article 13(4), The Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, reprinted in 40 ILM 532 (2001).

³⁴ For an analysis of FCCC Article 4(7), and similar provisions in other environmental treaties, see L Rajamani, ‘The Nature, Promise and Limits of Differential Treatment in the Climate Regime 2005’, Yearbook of International Environmental Law 81 (2007)

³⁵ See Lawrence Susskind, Environmental Diplomacy 34 (1994).

³⁶ Decision 1/CP.1, The Berlin Mandate: Review of Adequacy of Articles 4, paragraph 2, sub-paragraph (a) and (b), of the Convention, including proposals related to a Protocol and decisions on follow-up, contained in Report of the Conference of Parties on its first session held at Berlin from 28 March to 7 April 1995, FCCC/CP/1995/7/Add.1 (1995)

³⁷ ibid.

³⁸ ibid (emphasis added).

³⁹ Decision 1/CP.3, Adoption of the Kyoto Protocol to the United Nations Framework Convention on Climate Change in Report of the Conference of Parties on its Third Session at Kyoto held from 1 to 11 December, 1997, Addendum, FCCC/CP/1997/7/Add.1 (1998) 4.

⁴⁰ Preamble, Kyoto Protocol.

⁴¹ ibid Article 10.

⁴² ibid Article 3(1).

⁴³ Decision 1/CMP.1, Consideration of Commitments for Subsequent Periods for Parties Included in Annex I to the Convention under Article 3, Paragraph 9 of the Kyoto Protocol, FCCC/KP/CMP/2005/8/Add.1 (2006).

⁴⁴ Decision 1/CP.11, Dialogue on Long-Term Cooperative Action to Address Climate Change by Enhancing the Implementation of the Convention, FCCC/CP/2005/Add.1 (2006).

⁴⁵ ibid.

⁴⁶ See Report on the dialogue on long-term cooperative action to address climate change by enhancing implementation of the Convention, FCCC/CP/2007/4 (19 October 2007).

⁴⁷ See Report of the Conference of the Parties on its Thirteenth Session, held in Bali from 3 to 15 December 2007, Part One: Proceedings, FCCC/CP/2007/6 (14 March 2008) 14.

⁴⁸ ibid.

⁴⁹ Decision 1/CP.13, Bali Action Plan, in Report of the Conference of the Parties on its thirteenth session, held in Bali from 3 to 15 December 2007. Addendum. Part Two: Action taken by the Conference of the Parties at its thirteenth session, FCCC/CP/2007/6/Add.1 (14 March 2008) [herinafter Bali Action Plan]

⁵⁰ ibid.

⁵¹ Review Of Work Programme, Methods Of Work And Schedule Of Further Sessions, in Report of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its resumed fourth session held in Bali, 3–11 December 2007, FCCC/KP/AWG/2007/5 (5February 2008) 10.

⁵² Decision 1/CMP.3, Adaptation Fund, Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its third session, held in Bali from 3 to 15 December 2007, Addendum, Part Two: Action taken by the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol at its third session, FCCC/KP/CMP /2007/9/Add.1 (14 March 2008) 3.

⁵³ Decision 4/CMP.3, Scope and content of the second review of the Kyoto Protocol pursuant to its Article 9 ibid 19.

⁵⁴ The legal personality that COPs possess has been subject to academic discussion; See R Churchill and G Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little Noticed Phenomenon in International Law’, 94 Am. J. Int'l L. 623 (2000)

⁵⁵ Article 31(3) (a) Vienna Convention on the Law of Treaties, 23 May 1969, reprinted in (1969) 8 ILM 679

⁵⁶ (n 54) 641.

⁵⁷ The enabling clause in the relevant treaty may authorize a COP decision to be binding, or require more, as for example in the case of Article 18, Kyoto Protocol (mandating that compliance procedures and mechanisms entailing binding consequences shall be adopted by means of an amendment to the Protocol), see J. Brunnée, ‘COPing with Consent: Law-Making under Multilateral Environmental Agreements’ 15 Leiden Journal of International Law 1 (2002).

⁵⁸ See A Aust, Modern Treaty Law and Practice 2nd edn, 2007 191

⁵⁹ Explicit authorization for binding law-making is provided infrequently. Article 2(9) Montreal Protocol, 1987 is an oft-quoted example

⁶⁰ (n 57) 32.

⁶¹ Article 7, FCCC; some argue that the legislative competencies provided in some multilateral environmental agreements to progressively develop the regime amount to ‘powers of formal revision of the treaty.’ See V. Röben, Institutional Developments under Modern International Environmental Agreements, Max Planck Yearbook of United Nations Law, 363, 391 (2000).

⁶² See, eg Article 6 (2),12 (7) and 17, Kyoto Protocol, and Principles Nature and Scope of the Mechanisms pursuant to Article 6, 12 and 17 of the Kyoto Protocol, Decision 2/CMP 1, in FCCC/KP/CMP/2005/8/Add.1 (2005).

⁶³ Pursuant to Article 4(2) (d) FCCC.

⁶⁴ See, e.g. Berlin Mandate (n 36).

⁶⁵ (n 15).

⁶⁶ Article 18 Kyoto Protocol.

⁶⁷ See generally J Brunnée, ‘Reweaving the Fabric of International Law’ in M Craven and M Fitzmaurice (eds), Interrogating the Treaty: Essays in the Contemporary Law of Treaties (2005) 119, 120.

⁶⁸ Decision 27/CMP.1 Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol, in Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its first session, held at Montreal from 28 November to 10 December 2005, Addendum, Part II, FCCC/KP/CMP/2005/8/Add.3 (2006) 92.

⁶⁹ (n 57) 29.

⁷⁰ Enforcement Branch of the Compliance Committee, Final Decision, CC-2007-1-8/Greece/EB (17 April 2008).

⁷¹ ibid; see (n 57) 30 (discussing the extensive practice of less formal but nonetheless mandatory rule making that has developed under particular agreements)

⁷² Compare para 2(b), of the Berlin Mandate, and the chapeau of Article 10, Kyoto Protocol. Both contain language on not introducing any new commitments for Parties not included in Annex I, but reaffirming existing commitments.

⁷³ Article 4(3), (4), (5) and (7), FCCC.

⁷⁴ See Decisions 2, 4 and 6, in Report of the Conference of the Parties on its Seventh Session, Addendum, Part two, Action taken by the Conference of the Parties, Volume I FCCC/CP/2001/13/Add.1 (2002)

⁷⁵ See Letter from the Central Asia, Caucasus and Moldova Countries on their status under the Convention, Note by the secretariat, FCCC/CP/2001/12 (2001).

⁷⁶ See Report of the Conference of the Parties on its Ninth Session, Part one: Proceedings, FCCC/CP/2003/6FCCC/CP/2003/6 (2004) 23.

⁷⁷ See Report of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention on its first session, held in Bangkok from 31 March to 4 April 2008, FCCC/AWGLCA/2008/3 (2008)

⁷⁸ See Enabling the full, effective and sustained implementation of the Convention through long-term cooperative action now, up to and beyond 2012, Draft Conclusions Proposed by the Chair, in FCCC/AWGLCA/2008/L.7 (27 August 2008)

⁷⁹ Paragraph 1, Bali Action Plan [emphasis added]

⁸⁰ It is evident from certain Annex I Party submissions that perceive the Plan as leading to a ‘new agreement’ and a ‘single agreement’ post-2012 that they would like to preserve this option. See Submission by Canada in Views regarding the work programme of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Submissions from Parties, Addendum, FCCC/AWGLCA/2008/MISC.1/Add.2 (20 March 2008) 9, and Submission by Canada, in Views and information on the means to achieve mitigation objectives of Annex I Parties Submissions from Parties, Addendum, FCCC/KP/AWG/2008/MISC.1/Add.1 (17 March 2008) at 3. See contra Submission by India, in infra Submission from Parties 28, fn 85, and Statement by N. Sen Permanent Representative of India to the United Nations, General Assembly Thematic Debate on Addressing Climate Change, 62nd Session of the General Assembly, 13 February 2008

⁸¹ Paragraph 3, Preamble, The Berlin Mandate (n 36).

⁸² Draft of 14 December, 2007, on file with the author

⁸³ Draft of 11 December, 2007, on file with the author

⁸⁴ The EU views the Bali Action Plan as leading to a ‘comprehensive post-2012 agreement’ in 2009. Some, including the United States, were careful to use the term ‘agreed outcome,’ and India, among others, considers the FCCC to be comprehensive, and the post-2012 agreement to be but a part of the picture. See Submission by Slovenia, on behalf of the European Community and its Member States, in Views regarding the Work Programme for the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention taking into account the elements to be addressed by the group (Decision 1/CP.13), Submission from Parties, FCCC/AWGLCA/2008/MISC.1 (3 March 2008) 68; Submission by the United States in ibid 85; and Statement by N. Sen (n 80).

⁸⁵ Paragraph 3, Preamble, The Berlin Mandate (n 36)

⁸⁶ Paragraph 1(a) (n 49).

⁸⁷ Joint Press Conference by Prime Minister of India, M. Singh and Chancellor of Federal Republic of Germany A. Merkel, 30/10/2007, online, http://meaindia.nic.in/pressbriefing/2007/10/30pb04.htm.

⁸⁸ ibid.

⁸⁹ PM's Intervention on Climate Change at Heiligendamm Meeting of G8 plus 5, Heiligendamm, Germany, June 8, 2007, available at http://www.pib.nic.in

⁹⁰ Submission by France on behalf of the European Community and its Member States, Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan, Submissions from Parties, FCCC/AWGLCA/2008/MISC.2 (14 August 2008) 4; See also Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, Limiting Global Climate Change to 2° Celsius: The way ahead for 2020 and beyond., COM/2007/0002 final.

⁹¹ Presidency Conclusions, Brussels European Council, 8/9 March 2007, online, http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/93135.pdf

⁹² ibid.

⁹³ G8 Hokkaido Toyako Summit Leaders Declaration, Hokkaido Toyako, 8 July 2008, online, http://www.g8summit.go.jp/eng/doc/doc080714__en.html

⁹⁴ Submission by Japan, in Views regarding the Work Programme for the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention taking into account the elements to be addressed by the group (Decision 1/CP.13), Submission from Parties, Addendum, FCCC/AWGLCA/2008/MISC.1/Add.1 (12 March 2008) 4. See also for details of the ‘Cool Earth 50’ strategy, Shinzo Abe, Invitation to Cool Earth 50: 3 Proposals, 3 Principles, Speeches and Statements by Prime Minister, 24 May 2007, online, http://www.kantei.go.jp/foreign/abespeech/2007/05/24speech_e.html.

⁹⁵ ibid. Also, Japan recently proposed a 2020 deadline for boosting energy efficiency by 30 per cent. See Special Address by Yasuo Fukuda, Prime Minister of Japan on the Occasion of the Annual Meeting of the World Economic Forum, Congress Center, Davos, Switzerland, 26 January 2008, online, http://www.kantei.go.jp/foreign/hukudaspeech/2008/01/26speech_e.html

⁹⁶ Submission by Iceland (n 84) 25.

⁹⁷ Submission by Norway (n 84) 47, 48.

⁹⁸ Kevin Rudd: Ratifying the Kyoto Protocol, Media Statement, 3 December 2007, online, http://www.alp.org.au/media/1207/mspm030.php

⁹⁹ Submission by Australia (n 80) 7.

¹⁰⁰ Submission by Canada (n 80).

¹⁰¹ Submission by China (n 84) 18.

¹⁰² Submission by the US (n 84) 85, 87.

¹⁰³ ibid.

¹⁰⁴ ibid.

¹⁰⁵ (n 101).

¹⁰⁶ (n 102).

¹⁰⁷ (n 18). The US-initiated Major Economies Meetings were designed to address the concern that large developing countries did not have emissions mitigation commitments under the Kyoto Protocol. For further details see, online, http://www.state.gov/g/oes/climate/mem/Reference

¹⁰⁸ Submission by the US (n 84) 85, 87.

¹⁰⁹ Preambular paragraphs 3 and 4, Bali Action Plan. Paragraph 3 reads, ‘Responding to the findings of the Fourth Assessment Report of the IPCC that warming of the climate system is unequivocal, and that delay in reducing emissions significantly constrains opportunities to achieve lower stabilization levels and increases the risk of more severe climate change impacts.’ Earlier drafts contained a reference to ‘unequivocal scientific evidence’ rather than unequivocal warming. Drafts of 8 and 10 December, 2007, on file with the author

¹¹⁰ Preambular paragraph 4, Bali Action Plan [emphasis added]

¹¹¹ Drafts of 8, 10, 11 and 14 December, 2007, on file with the author.

¹¹² Notwithstanding the intense pressure the EU brought to bear on the US, including by issuing a threat to ‘boycott’ the next Major Economies Meeting hosted by the US. See Emily Beament, ‘Europeans step up pressure on US to agree Climate Targets’, The Herald, 14 December 2007; Frank McDonald, ‘EU may boycott US Climate Change Talks’, Irish Times, 14 December 2007; Thomas Fuller and Elisabeth Rosenthal, ‘Bitter Divisions at Climate Talks’, International Herald Tribune, 14 December 2007; and ‘Bali Talks go to the Brink’, Environmental Finance, 13 December 2007

¹¹³ Although news reports suggest that the US, Russia, Canada and Japan were opposed to targets, insiders indicate that Russia drove the disappearance of targets from the text. On the former, See ‘Accusations fly amid Bali Climate deadlock’, The Straits Times, 13 December 2007 and US pours cold water on Bali optimism, The Guardian, 17 December 2007

¹¹⁴ T Barker et al, Climate Change 2007: Mitigation of Climate Change. Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2007), Technical Summary, 90.

¹¹⁵ ibid. See also Box 13.7 at 776.

¹¹⁶ See M den Elzen, Emission Reduction Trade-Offs for Meeting Concentration Targets, Bonn Climate Change Talks, Presentation at the IPCC in-session workshop, UNFCCC SBSTA 28, 6 June 2008, online, http://www.ipcc.ch/graphics/pr-ar4-2008-06-briefing-bonn.htm

¹¹⁷ The EU has since Bali suggested that the AWGLCA consider how nationally appropriate mitigation actions in ‘advanced developing countries and major emerging economies’ could lead to a substantial deviation from baseline in 2020 (n 90) 5.

¹¹⁸ (n 51) para 3.

¹¹⁹ (n 114) 39, 90 and Box 13.7, 776.

¹²⁰ Article 2 notes that such stabilization should occur at a level that will prevent dangerous anthropogenic interference with the climate system. FCCC, 1992.

¹²¹ ibid.

¹²² Submission by the US (n 84) 87.

¹²³ Preambular paragraph 21, FCCC (containing a reference to ‘sustained economic growth’)

¹²⁴ Interview, C Dasgupta, Indian Delegation, 16 April 2007; see also Statement by N. Sen, in (n 84) (noting the need for India to ‘ensure accelerated and sustained development’).

¹²⁵ See M. L. Parry et al eds, IPCC Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2007), Summary for Policymakers, 20.

¹²⁶ (n 18) 158–62; see also Christopher Stone, Common but Differentiated Responsibilities in International Law, 98 Am. J. Int'l L. 276 (2004)

¹²⁷ Preambular paragraph 6, FCCC

¹²⁸ Preambular paragraph 21 and Article 4(7), FCCC

¹²⁹ A slash can indicate ‘or’ or ‘and’ or ‘or/and’. See Oxford English Dictionary, 2008

¹³⁰ See UN web cast, Conference of the Parties to the UNFCCC, Plenary Meeting, 15 December 2007, online, http://www.un.org/webcast/unfccc/2007/

¹³¹ Article 12, FCCC

¹³² Article 4(1), FCCC

¹³³ The only reference to Annex I and non-Annex I categories occurs in paragraph 5 which relates to the Chair and Vice-Chair of the new process. See (n 49).

¹³⁴ This refers to the Central Asia and the Caucasus, Albania, and Moldova group of countries. This group consists of Albania, Armenia, Azerbaijan, Kazakhstan, Krygyzstan, Moldova, Tajikistan, Turkmenistan, and Uzbekistan

¹³⁵ See (n 75),

¹³⁶ See 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, FCCC/SBI/2002/L.14 (2002)

¹³⁷ Annex I to the FCCC contains a list of ‘developed country Parties and other Parties,’ Article 4(2), FCCC, 1992. Amendments to the Convention, including its annexes, require consensus for adoption, or failing consensus, a three-fourths majority vote of the Parties present and voting in the meeting. Voting however is problematic as Parties are yet to agree on Rule 42 (Voting), of the draft Rules of Procedure, which have been applied, with the exception of Rule 42, since 1996. See Draft Rules of Procedure of the Conference of the Parties and its Subsidiary Bodies in FCCC/CP/1996/2, and Articles 15 and 16, FCCC. The Annex I (and by extension non-Annex I) category is also arguably static in that inclusion into and exclusion from the FCCC Annexes is, in practice, a lengthy process. The experience of Turkey is a case in point, see for a discussion of the Turkey case, (n 34) 113–4

¹³⁸ In the Ad Hoc Group on the Berlin Mandate process in the lead up to Kyoto, the US had insisted that it would take meaningful participation from key developing nations for it to undertake binding obligations. See (n 18), Chapter 7, and references contained therein; see also Submission by the US (n 84).

¹³⁹ See (nn 188–189) and accompanying notes.

¹⁴⁰ See Climate change: Bali conference must launch negotiations and fix ‘roadmap’ for new UN agreement, IP/07/1773, Brussels, 27 November 2007; See also Environment Council Conclusions, 30 October 2007, and Submission by France (n 90) 5–6.

¹⁴¹ See Submission by Japan (n 90) 15–16, 25 (relevant factors identified include economic status, capacity to respond (eg GDP per capita), share of global emissions, emissions per capita and relative responsibility to climate change)

¹⁴² Submission by Australia, in Views and information on the means to achieve mitigation objectives of Annex I Parties, Submissions from Parties, Addendum, FCCC/KP/AWG/2008/MISC.1/Add.2 (20 March 2008) 5; see also FCCC/AWGLCA/2008/MISC.1/Add.2 (n 81) 8 (noting that of the top 15 emitters seven are in Annex I (US, EU, Russia, Japan, Canada, Australia and Ukraine), 6 are countries with a higher per capita GDP than Ukraine which is a Annex I Party (Brazil, China, Iran, Korea, Mexico, and South Africa), and two (India and Indonesia) have a lower per capita GDP than Ukraine. Arguing that as together these 15 are responsible for 3/4 of global GHG they will have to act as part of a 2012 agreement for any goal to be met)

¹⁴³ ibid.

¹⁴⁴ (n 130).

¹⁴⁵ See Submission by Bangladesh in (n 84) 8.

¹⁴⁶ See (n 130).

¹⁴⁷ The shared vision was perhaps best articulated in their call for a New International Economic Order (NIEO). See generally M Bedjaoui, Towards A New International Economic Order (1979). International environmental law encompasses several principles put forward in the context of the NIEO. See K Hossain, ‘Sustainable Development: A Normative Framework for Evolving a More Just and Human International Economic Order’, in The Right To Development In International Law (Subrata Roy Choudhary et al. eds., 1992) 259; and A Cassese, International Law In A Divided World 351(1986)

¹⁴⁸ The ‘green group’ comprising of the G-77 without the OPEC and the EU forged an alliance which led to the Berlin Mandate. See S. Oberthür and H. E. Ott, The Kyoto Protocol: International Climate Policy for the 21st Century (1999) 46.

¹⁴⁹ See (n 94) 11.

¹⁵⁰ See G de Lacharriere, Identification et statut de pays moins développés, XVII Annuaire Francaise du droit International (1971) 461; see also M. Flory, Adapting International Law to the Development of the Third World, J. African L. (1982) 12.

¹⁵¹ For a detailed discussion of this issue see (n 34) 109–117.

¹⁵² ibid.

¹⁵³ In practice, the Global Environment Facility and the relevant environmental treaty secretariats draw from UN practice and augment it with specific treaty-relevant criterion. See eg Decision 11/CP.1, Initial Guidance on Policies, Programme Priorities and Eligibility Criteria to the Operating Entity or Entities of the Financial Mechanism, FCCC/CP/1995/7/Add.1 (1995)

¹⁵⁴ See (n 34).

¹⁵⁵ See, e.g. Article 4(7), FCCC (references to developing and developed country Parties)

¹⁵⁶ See, e.g. Article 10 (references to developing country Parties) and 11 (references to developing and developed country Parties), Kyoto Protocol.

¹⁵⁷ The G-77/China made this point in the Accra negotiations See ‘AWGLCA 3 and AWG-KP 6 Highlights: Saturday 23 August 2008’, 12(380) Earth Negotiations Bulletin (25 August 2008) 2.

¹⁵⁸ Manoeuvring either to ensure a particular classification or to strenuously resist re-classification as circumstances evolve

¹⁵⁹ See Criterion and list of LDCs, online, http://www.unohrlls.org/

¹⁶⁰ Maldives is ranked 100th on the Human Development Index (HDI). It has a GDP per capita of 5,261 USD. India is ranked 128th on the HDI, and it has a GDP per capita of 3, 452USD, see Statistics of the Human Development Reports, 2007/8, online, http://hdr.undp.org/en/statistics/

¹⁶¹ e.g. Côte d'Ivoire, Ghana, India, Kenya, Democratic Republic of Korea, Kyrgyz Republic, Nigeria, Pakistan and Papua New Guinea, Tajikistan, Uzbekistan, Vietnam and Zimbabwe, see, World Bank, Data and Statistics, Country Groups, online, http://web.worldbank.org

¹⁶² e.g. Angola, Cape Verde, Kiribati, Lesotho and Maldives, see (n 159).

¹⁶³ See (n 160).

¹⁶⁴ Members of the EU, online, http://europa.eu/abc/european_countries/index_en.htm

¹⁶⁵ Submissions from Singapore and Korea skirt around the issue of differentiation as it applies to them but appear to proceed implicitly from the basis that they are developing countries, and as such they stress the importance of differentiation in favor of developing countries, see (n 90), Submission by Singapore 54–56, and Submission by the Republic of Korea 50–51.

¹⁶⁶ See Report of the Conference Of The Parties on the second part of its sixth session, held at Bonn from 16 to 27 July 2001, FCCC/CP/2001/5 (25 September 2001) 14.

¹⁶⁷ See (n 160) and on India, online, http://hdrstats.undp.org/countries/country_fact_sheets/cty_fs_IND.html

¹⁶⁸ India's growth rate averaged just above 8 per cent in the last four years. See Economic Surveys, Ministry of Finance, Government of India, online, http://www.finmin.nic.in

¹⁶⁹ A recent Government study found that up to 45 per cent of GDP variations in India in the last 50 years could be explained by fluctuations in rainfall. See a study by A. Virmani cited in ‘In India a prayer for rain, despite a deluge’ The New York Times 6 July 2007. A 2–3.5°C temperature increase could cause as much as 0.67 per cent GNP loss, and a 100 cm increase in sea level could cause 0.37 per cent GNP loss. See J. Roy, A Review of Studies in the context of South Asia with a special focus on India: Contribution to the Stern Review (2006), and A. Challinor et al, Indian Monsoon: Contribution to the Stern Review (2006)

¹⁷⁰ Recent proposals on border carbon adjustment measures to address competitiveness concerns in the US and EU are reflective of this fear. See e.g. S-1766, Bingaman-Specter Low Carbon Economy Act, and S-2191 Lieberman-Warner, America's Climate Security Act. A draft version of the EU's third-phase emissions trading scheme contained in Article 29 a border carbon adjustment measure titled Future Allowance Import Requirement (FAIR), but this has since been dropped.

¹⁷¹ The idea of a registry was floated by South Africa in the context of Sustainable Development Policies and Measures (SD-PAMs), See Submission by South Africa, Dialogue on long-term cooperative action to address climate change by enhancing implementation of the Convention, Dialogue Working Paper (20 October 2006) 18.

¹⁷² See (n 15)

¹⁷³ See Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol, in Report of the Conference of the Parties on its Seventh Session, Addendum, Part two, Action taken by the Conference of the Parties, Volume III, FCCC/CP/2001/13/Add.3 (2002)

¹⁷⁴ Submission by China, (n 84) 19

¹⁷⁵ Submission by South Africa (n 94) 17 (noting that ‘we need to see greater commitments from all developed countries, which need to be measured, reported and verified using the mechanisms established under the Kyoto Protocol’) (emphasis added)

¹⁷⁶ Article 26, Kyoto Protocol.

¹⁷⁷ See C Redgwell, ‘Multilateral Environmental Treaty-Making’, in Multilateral Treaty-Making (V. Gowlland-Debbas ed., 2000) 89, 99.

¹⁷⁸ Article 3, Kyoto Protocol, as required by Paragraph 2, The Berlin Mandate (n 36).

¹⁷⁹ In the absence of the comma it could have been plausibly argued that the envisaged ‘actions’ would have to include quantified emission limitation and reduction objectives. This would, however, have rendered the difference between ‘mitigation commitments’ and such ‘actions’ illusory. An alternative interpretation of the comma could be that the term ‘quantified emission limitation and reduction objectives’ applies both to mitigation commitments and actions, that is, countries could take commitments and actions as long as they include quantified emission limitation and reduction objectives

¹⁸⁰ Drafts of 8, 10, 11, and 14 December 2007, on file with the author

¹⁸¹ G-77/China proposal, 14 December 2007, on file with the author

¹⁸² See (n 180).

¹⁸³ See eg ‘Canada stalls commonwealth climate deal’, The Star, 23 November 2007; Canada sued for abandoning Kyoto Climate Commitment, Environmental News Service, 29 May 2007; and ‘Impossible’ for Canada to meet Kyoto targets: Ambrose, CBC News, 7 April 2006

¹⁸⁴ The Canadian government however is arguing, in response to a lawsuit filed by Friends of the Earth, that the consequences of non-compliance with the Kyoto Protocol targets are not legally binding as such procedures were not adopted as an amendment to the Kyoto Protocol by agreement of all Parties. See Court File Number T 1683-07, Federal Court, Between Friends of the Earth and The Minister of the Environment, Memorandum of Fact and Law, 5 (paragraph 9).

¹⁸⁵ A withdrawal under Protocol Article 27 takes effect a year from the date of notification of withdrawal. If a Party can predict that it is unlikely to be in compliance with its commitments, it could withdraw from the Protocol before the end of the first commitment period and avoid having compliance consequences visited upon it. There may be an even longer time frame within which to withdraw. Assessment of compliance, and the more stringent compliance consequences (subtraction from the Party's second commitment period's assigned amounts at a penalty rate of 1.3 times the amount in tons of excess emissions) will only come into play at the end of the commitment, accounting and review period, estimated by some to be in 2015, ibid paragraph 8.

¹⁸⁶ See Proposal for a Decision of the European Parliament and of the Council on the effort of Member States to reduce their greenhouse gas emissions to meet the Community's greenhouse gas emission reduction commitments up to 2020, Presented by the Commission, COM(2008) 17 final, 2008/0014 (COD), Brussels, 23 January 2008

¹⁸⁷ Drafts of 11 and 14 December 2007, on file with the author

¹⁸⁸ Further details online, http://www.state.gov/g/oes/climate/mem/

¹⁸⁹ President Bush and the Asia-Pacific Partnership on Clean Development, Office of the Press Secretary, 27 July 2005. See also Vision Statement of Australia, China, India, Japan, the Republic of Korea and the United States of America for a New Asia-Pacific Partnership on Clean Development and Climate, 28 July 2005, online, http://www.asiapacificpartnership.org/

¹⁹⁰ See (n 188, 189).

¹⁹¹ President George W. Bush, 31 May 2007, online, http://www.whitehouse.gov/news/releases/2007/09/20070927.html

¹⁹² See (nn 181–183), and accompanying text

¹⁹³ Paragraph 11, Bali Action Plan

¹⁹⁴ For further details see (n 18) Chapter 7

¹⁹⁵ ibid and references cited therein

¹⁹⁶ See (n 44).

¹⁹⁷ See (n 130) (see in particular statements by South Africa and Brazil). See also Submission by South Africa (n 94) 17.

¹⁹⁸ Submission by China (n 84) 19. This interpretation is plausible also because the chapeau permits a choice between national and/or international action

¹⁹⁹ Article 4(1), FCCC

²⁰⁰ See (nn 30–34) and accompanying text

²⁰¹ Articles 4(3), 4(5) and 4(7), FCCC

²⁰² Article 10, Kyoto Protocol

²⁰³ See (n 173). The facilitative committee is tasked with the overall responsibility of ‘promoting compliance by Parties of their commitments under the Protocol.’ ibid section IV, paragraph 4; the financing and technology commitments could also be brought within the specific mandate of the facilitative branch relating to Article 3(14) of the Kyoto Protocol. ibid section IV, paragraph 5

²⁰⁴ Article 4(5), FCCC

²⁰⁵ Article 4(3), FCCC

²⁰⁶ This interpretation would accord with the US position that financing will be generated outside the Convention as well—both domestically in developing countries and through bilateral and other arrangements. Submission by the US (n 84) 88

²⁰⁷ Article 12, Kyoto Protocol

²⁰⁸ There is, of course, an elaborate system for verification of CDM credits, but under the Kyoto Protocol, see (n 15).

²⁰⁹ This term used widely in the last few years to refer to the post-2012 phase is inaccurate and politically-charged, for it is not the Kyoto Protocol that comes to an end in 2012, but the first commitment period. It may however have been prescient in that the post-2012 phase may well be a ‘post-Kyoto’ phase

²¹⁰ Submission by the US (n 84) (noting that ‘we see discussions on mitigation focusing on nationally appropriate actions that are measurable, reportable, and verifiable’) [emphasis added]

²¹¹ ibid 85 (noting that ‘environmental effectiveness requires national undertakings and review mechanisms’) [emphasis added]

²¹² Whether the differential treatment contained in the Kyoto Protocol is legitimate and/or excessive is a separate enquiry. See (n 18), Chapter 7, for discussion of this question

²¹³ Submission by the US (n 84) 85.

²¹⁴ ibid 86.

²¹⁵ ibid 87.

²¹⁶ See (n 51).

²¹⁷ The EC had in 1997, perhaps to forestall any difficulties encountered in adopting the Kyoto Protocol, suggested an amendment remedying this. Arrangements for Intergovernmental Meetings, Amendments to the Convention or its Annexes, Netherlands (on behalf of the European Community and its member states): proposed amendment to article 17 of the convention, FCCC/SBI/1997/15 (20 June 1997) (proposing a 3/4 majority voting procedure should efforts at consensus fail)

²¹⁸ See (n 137).

²¹⁹ Article 15(2), FCCC.

²²⁰ Article 21(3), Kyoto Protocol.

²²¹ Executive Summary, World Energy Outlook 49 (2007), available at: http://www.iea.org/Textbase/npsum/WEO2007SUM.pdf

²²² Id.

²²³ See (n 114).

²²⁴ Paragraph 2, Preamble, Bali Action Plan.

²²⁵ See contra views of the White House ‘US pours cold water on Bali optimism’, The Guardian (noting that the US has ‘serious concerns’ because the Bali Action Plan does not adequately address the responsibilities of developing countries)

²²⁶ See National Greenhouse Gas Inventory Data FCCC/SBI/2007/30 for the period 1990–2005, 24 October 2007, FCCC/SBI/2007/30, at 8. The figures if LULUCF is included are:—4.6 per cent for all Annex I,—36.2 for Annex I, and +10 for other Annex I.

²²⁷ ibid

²²⁸ ibid

²²⁹ The latest projections by Member States show that implemented policies and measures are expected to reduce EU-15 emissions to 4 per cent below base year levels by 2010. Further reductions are expected from the implementation of the measures in the 23 January 2008 Climate and Energy Package proposed by the Commission. See Climate change: EU on track towards Kyoto target but efforts must be maintained, projections show, IP/07/1774, Brussels, 27 November 2007

²³⁰ See ‘Japan says can meet Kyoto Goals’, Reuters, 11 February 2008

²³¹ See (n 226).

²³² ibid.

²³³ ibid.