[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.
The second issue boiled down to the degree to which the Bali Roadmap would represent a repeat of the Berlin Mandate (the negotiating mandate for the Kyoto Protocol), which had, on the one hand, called for “quantified emission limitation and reduction objectives” for Annex I countries (a list of developed countries originally set forth in the UNFCCC), but, on the other hand, had specifically excluded the possibility of any new commitments for non-Annex I (i.e., developing) countries. This sharp separation between developed and developing countries in the Berlin Mandate was one factor that motivated the 97-0 adoption by the US Senate of the Byrd-Hagel resolution, which in essence represented an advance repudiation of the Kyoto Protocol. Many feared that, if the Bali Roadmap could be characterized as the Berlin Mandate Redux, this would spell doom for ratification of any future agreement by the United States.
Interestingly, although developing countries in Bali continued to press for a strong differentiation between developed and developing countries, few (other than Saudi Arabia) called for Berlin Mandate-type language that would categorically exclude any new commitments for themselves – a significantly more positive approach that ultimately enabled agreement. Instead, they supported less categorical language that called for quantified emission “commitments” by developed countries and for “actions” by developing countries. At the other end of the spectrum, the United States supported a single general provision calling for additional actions (rather than commitments) by all countries. (The proposed provision recognized countries’ different national circumstances, but didn’t draw a bright line distinction between developed and developing countries.) The European Union fell somewhere in the middle, closer to the developing country position.
When it became apparent that the Bali roadmap would include separate paragraphs for developed and developing countries (paragraphs (1)(b) (i) and (ii) of the Bali Action Plan), the United States pushed for the closest possible parallelism between the two provisions. To a significant extent, the United States succeeded in this effort:
- On the one hand, the developed country paragraph (para. 1(b)(i)) is less categorical than the Berlin Mandate in what it includes, calling only for “nationally appropriate mitigation commitments or actions, including quantified emission limitation and reduction objectives” (emphasis added). Note that actions are listed here as an alternative to commitments, emission targets are characterized as “objectives” (rather than “commitments” as in an earlier draft) and the reference to “nationally appropriate” suggests significant latitude for differentiation. Moreover, the chapeau for the paragraph calls only for “consideration” of “mitigation actions or commitments,” rather than mandating their negotiation.
- On the other hand, the developing country paragraph (para 1(b)(ii)), rather than excluding commitments (as the Berlin Mandate had), expressly calls for consideration of “nationally appropriate mitigation actions.” Since the chapeau for both paragraphs includes the phrase “inter alia,” the reference only to “actions” is not necessarily exhaustive, and does not foreclose proposals for developing country commitments.
- The two paragraphs refer to “developed” and “developing” countries rather than “Annex I” and “non-Annex I” parties, thereby leaving the door open (at least a crack) for arguments about which countries fall into which category.
- The modifiers “measurable, reportable, and verifiable” apply to actions under both paragraphs.
- Finally, other paragraphs of the Bali Action Plan (including, for example, the provision on sectoral approaches) do not differentiate between developed and developing countries.
Despite the US success in watering down the developed country paragraph and leaving important ambiguities in the developing country paragraph, the negotiations nonetheless threatened to implode at the last minute – according to one reliable source, over the placement of the phrase “measurable, reportable and verifiable” in the developing country paragraph. Originally this phrase qualified “actions” (“measurable, reportable and verifiable actions”), but China proposed in a small meeting earlier in the week that it be moved to the end of the paragraph, where it would qualify only language regarding technology, financing and capacity-building by developed countries in support of developing country actions. A compromise suggestion had been made to insert a comma before the phrase “measurable, reportable and verifiable” so that it would arguably qualify everything in the paragraph (both developing country actions and developed country support). But when India raised the issue in plenary on the final day (reading out the proposal orally), the United States reportedly was not sure whether the Indian proposal included the comma or not, leading it to object, fearing that moving the phrase to the end of the paragraph, without a comma, would water down the language referring to developing country actions. Only when developing countries clarified that they intended to include the comma did the United States finally join consensus. (Why the United States didn’t seek a clarification first, rather than objecting, is not clear.) Thus, for want of a comma, the Bali meeting was almost lost!
The result, as Friedman notes in his column today, represents only an incremental step, not the kind of bold transformation that many think is needed, given the severity of the climate problem. Moreover, the difficulties in negotiating the Bali Roadmap do not bode well for the treaty negotiations that will now commence. Despite the Bali decision, many countries (the United States foremost among them) still appear unprepared for serious negotiations – certainly, not until after the US Presidential elections next year. To make real progress, what is needed, above all, is US domestic action, along the lines of the Lieberman-Warner bill that was reported out of committee last week (but faces doubtful prospects on the floor and a likely Presidential veto), to demonstrate that the United States is finally serious about the climate change issue. Nevertheless, the willingness of both developing countries and the United States to accept an open-ended mandate for future negotiations is welcome news.
Note: For one vision of what a post-2012 climate agreement might look like, see the paper that I co-authored for the Pew Center on Climate Change, “Toward an Integrated Multi-Track Climate Framework.”