The International

Climate Change Regime:

The Kyoto Protocol

International Climate Change and Energy

Law
Spring semester 2013
Dr. Christina Voigt
 Quiz
1. Which legally binding international
agreements exists in the field of climate
change?
2. Where do we find the ultimate objective
of the UNFCCC?
3. What are ”Annex-I countries”?
4. What are ”non-Annex countries”?
5. What is the COP?
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 Institutional Structure
Secretariat
COP, art. 7
UNEP/WHO Art. 8 UNFCC, 14 KP CMP, art. 13 KP

UNFCCC KP

IPCC SBSTA SBI JISC Compliance

Art. 9 UNFCCC Art. 10 CDM EB
Art. 12 KP Art. 6 Committee
art. 18 KP
Annex I: OECD + EiT (AWG-LCA) ADP
Annex II: OECD Facilitative Enforce-
Non-Annex: developing countries Branch ment
Branch
Groups: (AWG-KP)
EU
Umbrella: USA, CAN, NO, AUS, NZ, RF, UK
G77 and China (subgroups: AOSIS and LDC, African Group)
EIG: Sveits, MX, South Korea
OPEC
BASIC: Brazil, India, China, South Africa
 UNFCCC
Stronger commitments needed!
…. Art. 17: Protocol necessary (more specific obligations)
 Kyoto Protocol - CPI
• Entered into force 16.02.2005, Members: 192 States
and the EU
• Sets quantified emissions limitation and reduction
obligations (QELRO) for Annex-I Parties (37 States)
• Art. 3.1 KP: overall emissions from Annex I Parties
shall be reduced to at least 5% below 1990 levels
within 2008-2012 (First Commitment Period)
• Assigned Amounts (Annex B)
• Art. 3.1 KP: Annex I Parties shall not exceed their
Assigned Amounts)
 Kyoto Protocol
Countries included in Annex B to the Kyoto Protocol and their emissions targets
Country Target (1990- 2008/2012)
EU-15, Bulgaria, Czech Republic,
Estonia, Latvia, Liechtenstein,
-8%
Lithuania, Monaco, Romania,
Slovakia, Slovenia, Switzerland
US -7%
Canada, Hungary, Japan, Poland -6%
Croatia -5%
New Zealand, Russian
0
Federation, Ukraine
Norway +1%
Australia +8%
Iceland +10%
 Kyoto Protocol
• Rules focus on:
• Commitments: legally binding individual emissions
targets and general commitments
• Implementation: domestic masures and three novel
implementing mechanisms (flexibility mechanisms)
• Minimizing impacts on developing countries
• Accounting, Reporting and Review
• Compliance: Compliance Committee to assess and
deal with problems of non-compliance
 Flexibility Mechanisms
• Geographic location of abatement measures is
climatically irrelevant
• Aim: global cost-effectiveness and reduction of
compliance costs
• Assigned amounts (AU) can be divided up into units
(Assigned Amount Units – AAUs) allowing Annex I
Parties (37 + EU) to participate in the flexibility
mechanisms
• Units create a tradable currency (1 unit= 1 t CO2
eqv.)
 Flexibility Mechanisms
4 Types of Mechanisms:
• Clean Development Mechanism (CDM) Art. 12
• Resulting in Certified Emissions Reductions – CERs
• Non-Annex I/ Annex I Projects
• Joint Implementation (Art. 6)
• Resulting in Emission Reduction Units – ERUs
• Annex I /Annex I Projects
• International Emissions Trading, Art. 17 (allows for
trade with AAUs, ERUs, CERs)
• Joint Fulfillment of Commitment (Art. 4)
 CPII – How did we get there?
• What is it?: Doha Amendment pursuant to Art. 3.9
KP, adopted in Doha, December 2013
• First commitment period expired 31.12. 2012 (not
the Protocol!)
• Developing countries demanded developed countries
to continue with the KP (But: USA?)
• In Durban 2011: EU plus some other Annex-I
countries agreed to a CPII…
• …to put pessure on developing countries in the ADP.
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 Kyoto CP II
– Second commitment period (2013-2020) for KP Annex-
countries, minus CA, RUS, NZL, J
– Objective of reducing GHG emissions by at least 18%
below 1990 (translation of voluntary pledges into
QUELROs – no strengthening of commitments), IPCC
suggested range of 25-40%) 15% of global emissions
– Party may «propose an adjustment to decrease» its
QUELRO, review in 2014
– When does it enter into force? (provisional
application/implementation consistent with national
legislation or domestic processes)
 Kyoto CPII
– Limit on carry-over of surplus allowances
(Russia ca. 13Gt CO2 eq.), political declarations
to not purchase CPI surplusses
– Participation in the flexibility mechanism (in
particular CDM) for non-Parties (but no
transfer or aquisition of CERs)
 ADP
ADP: Durban Platform for
Enhanced Action
a) Etablert av COP 17 i Durban
b) Mandat: (1/CP.17)
“Also decides to launch a process to develop a protocol, another
legal instrument or an agreed outcome with legal force under the
Convention applicable to all Parties, through a subsidiary body under
the Convention hereby established and to be known as the Ad Hoc
Working Group on the Durban Platform for Enhanced Action”
and:
“Ad Hoc Working Group on the Durban Platform for Enhanced
Action shall complete its work as early as possible but no later than
2015 in order to adopt this protocol, legal instrument or agreed
outcome with legal force at COP 21 and to enter into force in 2020.
 Durban Platform
• Establishment of a new body to negotiate a
global agreement (Ad Hoc Working Group on the
Durban Platform for Enhanced Action) by 2015 to
come into effect and be implemented from 2020;
• The form and substance of a new agreement were
not decided
• Parties opted for three options - ‘protocol, legal
instrument or agreed outcome with legal force’

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 Legal Form
• What is a ”Protocol, another legal instrument or an agreed
outcome with legal force under the Convention”?
• ”Deal” between the EU (legally binding
agreement/commitment) and India (legally binding
outcome)
• ”outcome with legal force”: not a legal instrument under
the UNFCCC: amendment, annex, protocol
• Legal force = legally binding or something different?
outcome that is not legally binding? COP decision?

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 ADP (after Doha)
• Two work streams: increasing ambition before
2020/comprehensive climate agreement in 2020
• Resurfacing of the «Fire-Wall», China: mentioning
of equity, CBDRRC and Rio+20/USA: no!
• Principles of the Convention apply, but how?
• Universality of application but not uniformity of
content
 What Now?
• Bridging the Gaps:
– Emission Gap (UNEP Emission Gap report:
• Implement pledges: 1 Gt
• Business as usual: 10 Gt
– Legal Gap: When does KP CPII enter into force?
Will there be a global agreement by 2015? Will
it be legally binding?
– Equity Gap: What is equity and who should be
doing what?
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 What is Equity, Art. 3 UNFCCC?
• Definition: The quality of being fair or
impartial; fairness; impartiality
• Synonyms: impartiality, fair-mindedness,
fairness, justness, evenhandedness, justice,
objectivity
• In the international discourse: equity and
fairness used interchangeably
 Equity and Equality
• Equality of sovereign states is a fundament
in Public International Law
– Equality: Same rights and duties, no arbitrary
discrimination among equals
– Problem: States differ!
Differentiation and positive discrimination
(affirmative action) is necessary in order to treat
different states equally.
 The Principle of Common but
Differentiated Responsibilities
…..and respective capabilities!
• Rio Declaration: “In view of the different contributions to
global environmental degradation, States have common but
differentiated responsibilities. The developed countries
acknowledge the responsibility that they bear in the
international pursuit of sustainable development in view of the
pressures their societies place on the global environment and
of the technologies and financial resources they command.”
• Framework Convention on Climate Change; “…parties should
act to protect the climate system “on the basis of equity and in
accordance with their common but differentiated
responsibilities and respective capabilities.”
 The Principle of Common but
Differentiated Responsibilities
…..and respective capabilities!
• How to interpret in 2013/2015/2020 and
beyond?
• Based on which criteria should differentiation
be made?
• Why?
• How politically feasible is that?
• …and how effective?
Top Fossil Fuel Emitters (Absolute)
Top four emitters in 2011 covered 62% of global emissions
China (28%), United States (16%), EU27 (11%), India (7%)

The growing gap between EU27 and USA is due to emission decreases in Germany (45% of the
1990-2011 cumulative difference), UK (19%), Romania (13%), Czech Republic (8%), and Poland
(5%)
Per capita emissions

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 …and respective capability?
The ten largest economies in the world, measured in nominal
GDP (millions of USD)
Alternative measures of “Responsibility”
Depending on perspective, the importance of individual countries changes

Cumulative emissions from 1751; Production is also called Territorial; GDP: Gross Domestic Product
Source: CDIAC Data; Unstats; Le Quéré et al. 2012; Global Carbon Project 2012
 The Principle of Common but
Differentiated Responsibilities
…..and respective capabilities!
• How to interpret in 2013/2015/2020 and
beyond?
• Based on which criteria should differentiation
be made?
• Why?
• How politically feasible is that?
• …and how effective?