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Post-2012 International negotiations: a legal reading of the most important issues

1. The Durban Conference decisions emphasize the urgency of the situation and the need to increase the level of ambition of GHG emission reductions pledges significantly in order to achieve the peak out of the average global temperature increase at +2°C. The principle of a second commitment period is adopted, even though many tricky issues raised by this extension are not settled yet. New negotiations are launched towards a more comprehensive agreement which would bring together all emitters by 2020. The legal form of this new agreement, whether a mandatory instrument or an instrument merely based on incentives, is still to be determined, as is its content: to what extent will it draw from the Kyoto Protocol, or from the ‘pledges and review’ much more flexible approach the Copenhagen Accord and Cancun Agreements reflect?

2. The principle of common but differentiated responsibilities played a major part in the post-2012 negotiations and is bound to keep a structuring role in the post-2020 negotiations. The 1992 UN Framework Convention and the 1997 Kyoto Protocol used to represent a compromise on what concretely the principle entailed in terms of developed and developing parties’ commitments. The rise of emerging countries calls into question this initial compromise. Until now, the balance between the conflicting claims of states hasn’t been found. Paradoxically, the principle of common but differentiated responsibilities which made it possible to reach an agreement on the international climate regime in the 90s has contributed to the post-2012 negotiations deadlocks. From this point of view, one cannot help but noticing that the Durban Platform where the post-2020 negotiations will take place does not refer to the principle anymore, suggesting that positions could relax.

3. In this very changing context, the traditional model of public action, principally aiming at forcing economic actors to adopt measures so as they contribute to meeting a quantified target of domestic emissions reduction (a ‘by-the-norm’ approach), shows its limits. Enterprises must be more involved and get further involved in the fight against climate change, first so as to effectively contribute to their GHG emissions reduction up to the challenges at stake and depending on their respective responsibilities and capabilities. Second, because they are the actors of their own transformation towards more sustainable production methods which will in the future be embedded in low carbon economies, all this in an increasingly competitive globalised context. Corporate Social Responsibility (CSR), standardization and certification, voluntary compensation and carbon finance, voluntary agreements, sectoral approaches at the international scale: the involvement of enterprises materializes through a wide variety of tools. From this angle, some of these tools such as sectoral approaches are actually innovative with regard to traditional international law. The expression itself hides a large range of instruments.

4. The articulation, not to say the complementarity, between international trade law and international climate change law raises important issues. The principle of mutual supportiveness, based on the necessary consistency between international legal instruments is considered to be a core principle which must also be connected to principles such as sustainable development, risk assessment, differentiated treatment and non-discrimination. The creation of ‘normative bridges’ like technical standardization is contemplated. It is nevertheless pressing to carry out works to define the international standard-making conditions, which are still little framed.

5. The issues of implementation control and reaction to non-compliance also raises important questions. The sophisticated and relatively intrusive observance mechanism set up by the Kyoto Protocol is to be extended to the second commitment period. However it potentially concerns only 35 parties— including the European Union. As regards the UNFCCC’s 195 parties, a more flexible control mechanism called ‘MRV’ (Measurement, Reporting & Verification) is currently developed and tested. Many unknowns remain and it is difficult to know whether it will really be capable to ensure the transparency and comparability of the parties’ pledges. As for the post-2020 period, it would be desirable that the new agreement makes the most of the bases laid down by the Kyoto Protocol.

Coordinators

S. Maljean-Dubois (CERIC)

Partnership

IDDRI

Funding
MEEDDM
Budget
107 710.00 € TTC
  • Climate Policy and International Climate Negotiations