Bali High?

by Daniel Bodansky

[Dan Bodansky is the Associate Dean for Faculty Development and Emily and Ernest Woodruff Chair in International Law at the University of Georgia Law School and a leading expert on climate change regulation. He participated in the Bali meeting and contributed this report to Opinio Juris.]

Only in the context of the climate negotiations could Bali be considered a “breakthrough,” as the press is reporting. In the past year, concerns about climate change have led to Nobel prizes, Academy Awards, and changes in governments; but the UNFCCC process continues to creep in its petty pace, ultimately threatening to fall apart at the 11th hour (actually, more like the 30th, since the negotiations went a day extra) over confusion involving a comma. (After Bali, “Eats, Shoots and Leaves” should be required reading for climate negotiators!)

Nevertheless, though Bali fell short of the dramatic breakthrough called for at the UN high level meeting last fall, it does represent a considerable step forward. Significantly, developing countries signaled a greater willingness to take further measures to combat climate change, accepting a negotiating mandate that involves consideration of actions involving them (unlike the Kyoto Protocol’s negotiating mandate, which expressly excluded them). For its part, the United States agreed to “launch a comprehensive process [i.e., negotiations]” to address the post-2012 period, when the Kyoto Protocol’s first commitment period ends (a change from its position at the climate meeting two years ago in Montreal, when it opposed initiating a new round of negotiations). Given the continued opposition by the Bush Administration to legally-binding limits on greenhouse gas emissions, this baby step (bringing the US back to its position in 1991, when the climate change negotiations first began) was about as much as could reasonably be expected from the Bali meeting.

The final plenary (which I missed through colossal miscalculation) was by all accounts one of the most dramatic in recent memory. (A webcast is available on the UNFCCC website). Twice, the Indonesian environment minister, who was serving as the COP President, had to suspend the meeting, due to objections from developing countries that consultations were still underway in another room (apparently unbeknownst to the COP President or the UNFCCC secretariat), under the facilitation of the Indonesian foreign minister. (Talk about lack of coordination within a government!) When the meeting finally reconvened, UN Secretary-General Ban Ki-Moon (who flew back to Bali for the final plenary), together with the President of Indonesia, made impassioned pleas for action. Even then, the meeting threatened to break down, when the United States objected to a proposed amendment by China India. But after the text was clarified by other developing countries, the United States joined consensus, allowing everyone to declare victory.

In today’s New York Times, Thomas Friedman comments that he needed 10 experts to explain the Bali outcome to him – and he was there! I sympathize. Reading climate texts has become like Talmudic exegesis or deciphering a secret code — not something that can easily be undertaken by the outside observer! Each word has a long history, and is typically capable of multiple interpretations.

The two key issues in the negotiations over the so-called Bali Action Plan were: (1) whether to reference in the preamble an IPCC scenario involving 25-40% emission reductions (from 1990 levels) by developed countries by 2020; and (2) the degree of parallelism between the paragraphs of the mandate addressing developed and developing countries.

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