Legal avenues for climate deal

Parties to the UN Framework Convention on Climate Change (UNFCCC) and parties to the Kyoto Protocol are going to Copenhagen along with the negotiation texts consolidated from Barcelona. The mandate is to reach a new agreement or agreements at the UN Climate Change conference. The small sphere of this feature aims to examine and evaluate the different legal options of the (to be) agreed outcomes of Copenhagen climate deal.
Emerging norms, principles and rules of prevention and mitigation have evolved, particularly since the 1972 Stockholm Declaration on Human Environment to address problems of global environmental changes. Twenty years later, climate change appeared as a distinct issue of international legal regime in 1992, through adoption of United Nations Framework Convention on Climate Change (UNFCCC), [the Convention].
The COP-3 of the Convention in Kyoto, Japan, on 11 December of 1997, adopted the Kyoto Protocol [the Protocol], a legally binding instrument to supplement and strengthen the Convention. The Protocol imposes, inter alia, detailed obligations mainly on the developed nation-parties to reduce the GHG emission. The emissions targets set by the Protocol are to be achieved during its first commitment period, 2008-12. Usually the end of the first commitment period requires additional commitment periods.
Article 3.9 provides the avenue of an amendment of the Protocol for the next commitment period and calls for negotiations on further commitments to begin at least seven years before the end of the first commitment period. As such, in 2005, pursuant to the said Article parties of the Protocol established an Ad Hoc Working Group (AWG-KP) to review the Protocol and to agree on further commitments for Annex 1 Parties. In Copenhagen, an agreed amendment to the Protocol should be adopted at the Meeting of the Parties (MOP).
On the other hand, the Bali Action Plan adopted by the COP-13 of the Convention launched "....a comprehensive process to enable the full, effective and sustained implementation of the Convention through long-term cooperative action, now, up to and beyond 2012, in order to reach an agreed outcome and adopt a decision at its fifteenth session..."
The AWG-KP negotiating track compels to suggest amendment of the Protocol for a second commitment period. In this case, legal implication is clear which is evidently set out in its Article 3.9 for their subsequent commitment period. Then again the AWG-LCA track is mandated to enhance implementation of the UNFCCC. However, legal nature of the outcomes of the Bali Action Plan is not certain. Bali Action Plan only specifies that an "agreed outcome" should be reached and a decision should be adopted in COP-15.
The Convention and Protocol share a common objective, common principles and common institutions and as such some of the parties propose a single instrument approved by both the Convention and the Protocol. Submissions of different parties suggest variety of preferences on the legal architecture of Copenhagen deal. Three main approaches in legal nature found in the submissions are:
1.A new Protocol under the Convention and ending the Kyoto Protocol after its first commitment period.
2. Amendment of the Kyoto Protocol for second period and the other outcomes to be dealt under the Convention.
3. Amendment of the Kyoto Protocol while creating another Protocol under the Convention for developing countries and non-Kyoto Parties.
Adopting a new Protocol combining the outcomes of two working groups is an ambitious undertaking that would require significant additional time phase through COP decisions. In this case, The Kyoto Protocol would be terminated subject to ending first commitment period or at some point of entry into force of the new Protocol. But abandoning the Protocol is a very dangerous strategy that puts equity, justice and adequacy concerns at risk. The Protocol and its clear distinction between developed and developing countries and their respective obligations is the best tool for ensuring the principle 'common but differentiated responsibilities'.
In addition, in the current political climate it is not conceivable that parties will be able to agree on any alternative treaty/Protocol that is stronger than the Kyoto Protocol in terms of its top down approach, legally binding, economy-wide targets for developed countries, compliance mechanisms and long-term viability.
The Copenhagen deals would lead to a new policy direction to govern the climate regime. However, this of course suggests that under present and potential impacts of climate change, global community would adopt a comprehensive policy commitment to response climate change that would create further pathway for appropriate legal and institutional frameworks. Equity would be the heart of the future commitments and a fair distribution of efforts would be made by the parties based on common but differentiated responsibility.
In other words, Annex I countries must accept responsibility for the emissions that have contributed disproportionately to causing climate change, denying atmospheric space to developing countries and its adverse impacts on the poor. On the other hand developing countries are not obliged legally for emission reduction.
Climate politics does not signaled either in Bangkok or Barcelona to deliver appropriate outcomes as obliged by the mandate of the two AWGs. US has made clear it will not sign on an internationally binding agreement unless China, India and other 'advanced developing countries' also sign on such agreement. European Union had also decided to pursue a 'single new agreement', which they want under LCA working group. On the other hand the G 77 and China called on the developed countries which are the parties to the Protocol to go for second commitment.
Wide differences, mainly between developed and developing countries made the climate deal expected in Copenhagen uncertain. Instead of rigorous emission reduction commitment climate politics is turning now to aim at mere a 'Political Declaration'. However, global community is looking forward to Copenhagen with due expectation that developed countries, which attributed the cause, should take responsibility under the auspices of equity, justice and climate debt.
Developed countries must comply with their legally binding responsibility to ensure a robust second commitment period under the Kyoto Protocol. It is essential that the AWG-KP and AWG-LCA tracks be kept distinct, as per the existing legal mandates. Strong efforts must be directed towards aggressively advancing work in the AWG-KP and ensuring ambitious mitigation action for Annex 1 countries under the post-2012 agreement.
A sizable Bangladesh delegates is also going to Copenhagen. An appeal to Bangladesh delegates is to concentrate on the text particularly where climate induced migration (Climate Refugee) issue is formulated weakly [Page 54, FCCC/AWGLCA/2009/14, 20 November, 2009] and to consult with legal experts to suggest appropriate formation. A single line with sense on migration in the Copenhagen climate deal would put forward the issue to the legal norms.

M Hafijul Islam Khan (Shuvro) is lawyer, BELA, E-mail: [email protected].