Cantley-Smith, Rowena --- "Climate Change and the Copenhagen Legacy: Where to From Here?" [2010] MonashULawRw 12; (2010) 36(1) Monash University Law Review 278

CLIMATE CHANGE AND THE COPENHAGEN LEGACY: WHERE TO FROM HERE?

ROWENA CANTLEY-SMITH*

I INTRODUCTION

In December 2009, State Parties to the United Nations Framework Convention on Climate Change^[1] (‘UNFCCC’) and the Kyoto Protocol to the United Nations Framework Convention on Climate Change^[2] (‘Kyoto Protocol’) met in Copenhagen, Denmark, for the latest annual Conference of Parties (‘COP15/CMP5’).^[3] The centrepiece on the negotiation table was supposed to be a draft international instrument, intended to replace the existing Kyoto Protocol after it expires, in terms of its current international commitments, at the end of 2012. Prior to this meeting, a ‘climate deal in Copenhagen’ was said to be ‘an unequivocal requirement to stop climate change from slipping out of control’.^[4] Despite such claims, at the conclusion of these recent United Nations climate change negotiations it became apparent that achieving consensus on a completely new functional international climate change agreement is proving to be a much harder task to achieve than previously anticipated.^[5] From one perspective, the final agreement, known as the Copenhagen Accord, is little more than political rhetoric evidencing the power play of international relations at its worst.^[6] By contrast, in light of the extensive discord between State Parties, securing an agreement of any sort confirms a successful outcome of the Copenhagen meeting.

Regardless, failing to agree on a comprehensive new climate change treaty raises a serious question mark over the likely effectiveness of climate change strategies and greenhouse gas mitigation and abatement measures. Restraining future increases in global temperature to levels as or below the widely touted ‘two degrees target’ is far from guaranteed.^[7] This is particularly concerning for Australia and its neighbours, especially island states. In addition to the lack of international progress, recent attempts to introduce climate change legislation were thwarted in late 2009.^[8] This is in stark contrast to many other developed states. In the United Kingdom and other member states of the European Union, steps forward are well underway with the introduction of domestic climate change laws and related developments actively moving these economies towards a low carbon future. Australia’s lack of comprehensive action on climate change places it at a distinct disadvantage vis-a-vis other developed nations. As recently noted, ‘Australia needs a comprehensive set of national climate laws; otherwise there is a very real risk we will be left behind’.^[9]

Within this context, this paper reviews the outcomes of the United Nations (‘UN’) climate negotiations in Copenhagen 2009. By way of background, Part II of this paper commences with an overview of climate change, energy markets, and the international legal framework underpinning the ongoing annual climate change discussions by State Parties to the UNFCCC. Key aspects of the international climate change debate and outcomes of the COP15/CMP5 are examined in Part III, including the Copenhagen Accord and other relevant decisions of State Parties to the COP15/CMP5. While it is not possible to canvass all aspects of the ongoing climate change contretemps between State Parties, the major points of contention between developed and developing nations are set out in this part. The final part of this paper reviews Australia’s position vis-a-vis climate change and rising national greenhouse gas emissions.

II CLIMATE CHANGE AND THE INTERNATIONAL LEGAL FRAMEWORK

A CLIMATE CHANGE, GREENHOUSE GAS EMISSIONS AND ENERGY SUPPLY AND USE

It is no secret that current global consensus favours the view that climate change is one of the most significant environmental dilemmas facing the international community. Scientific evidence to date suggests that since pre-industrial times, the

planet has ‘warmed by an average of 0.76º Celsius’.^[10] What is more, this upward trend in temperature rise is, on average, rising over time rather than slowing down.^[11] According to the Intergovernmental Panel on Climate Change (‘IPCC’), ‘warming of the climate system is unequivocal’ and is evidenced by ‘observations of increases in global average air and ocean temperatures, widespread melting of snow and ice and rising global average sea level’.^[12] The IPCC also makes the following observations:

Observational evidence from all continents and most oceans shows that many natural systems are being affected by regional climate changes, particularly temperature increases.^[13]

Global atmospheric concentrations of CO₂, CH₄ and N₂O have increased markedly as a result of human activities since 1750 and now far exceed pre-industrial values determined from ice cores spanning many thousands of years. ... The atmospheric concentrations of CO₂ and CH₄ in 2005 exceed by far the natural range over the last 650 000 years. Global increases in CO₂ concentrations are due primarily to fossil fuel use, with land-use change providing another significant but smaller contribution. It is very likely that the observed increase in CH₄ concentration is predominantly due to agriculture and fossil fuel use. The increase in N₂O concentration is primarily due to agriculture.^[14]

There is very high confidence that the global average net effect of human activities since 1750 has been one of warming ...^[15]

In order to adequately deal with the potentially wide ranging harm resulting from future changes in the climate, it has generally been accepted that global warming should be kept below 2°C above the pre-industrial temperature, or around 1.2°C above current levels, in order to stave off major catastrophes.^[16] The European Commission recently explained how these temperature levels translate into emissions cuts:

Scientific evidence shows that to keep within the 2°C ceiling, global emissions of greenhouse gases will have to peak by 2020 at the latest, be cut by at least 50% of their 1990 levels by 2050, and continue to decline thereafter.^[17]

Achieving adequate greenhouse gas emissions abatement of this magnitude necessitates identification of the key sources of this form of transboundary environmental pollution. To date, the majority of relevant scientific investigations on greenhouse gas emissions have made it abundantly clear that the burning of natural resources, fossil fuels in particular, is extremely dangerous for the global atmosphere. Such emissions result in a range of environmental harms including transboundary problems such as acid rain and climate change. The consequences were spelt out by the IPCC in its fourth and final assessment report on climate change, on its effects and causes (the Synthesis Report 2007). Notably, the Panel concluded that the major cause of global warming is human activities, in particular the increased use of fossil fuels.^[18] In this regard the IPCC stated that overall global greenhouse gas emissions due to human activities have increased by 70 per cent between 1970 and 2004, while carbon dioxide emissions have risen by around 80 per cent over the same period.^[19]

Australia’s greenhouse gas emissions are similar to, if not worse than, that occurring in many other developed and emerging economies around the world. Currently, more than three quarters of Australia’s annual greenhouse gas emissions are directly attributable to the combined energy sectors (stationary energy, transport and fugitive).^[20] As illustrated in Table 1 below, Australia’s heavy reliance on coal in domestic electricity production results in the domestic stationary energy sector generating more than half of the total of greenhouse gas emissions.^[21] Moreover, between 1990 and 2007 Australia’s total emissions rose by 30 per cent,^[22] energy sector emissions rose by 42.5 per cent^[23] and stationary energy sector emissions increased by a staggering 49.5 per cent.^[24] What is even more revealing is the increasingly adverse impact of Australia’s heavy reliance on fossil fuels on levels of greenhouse gas emissions. Relevantly, between 1990 and 2007, coal combustion emissions increased by 48.3 per cent, while gaseous fossil fuel emissions rose by 72.9 per cent.^[25]

Table 1: 

Net greenhouse gas emissions by sector and sub-sector in 2007^[26][27]

What is more, the costs associated with rising greenhouse gas emissions and climate change are considerable in magnitude, character and effect. A complicating feature of these costs is the general lack of connection between the polluter generating emissions and the parties who ultimately experience the adverse consequences of climate change. As noted in the Stern Report,^[28] greenhouse gas emissions and the resulting costs of climate change are a significant example of market failure, whereby important and costly externalities have not been factored into energy prices:

Climate change is a result of the externality associated with greenhouse-gas emissions — it entails costs that are not paid for by those who create the emissions. It has a number of features that together distinguish it from other externalities:

· It is global in its causes and consequences;

· The impacts of climate change are long-term and persistent;

· Uncertainties and risks in the economic impacts are pervasive.

There is a serious risk of major, irreversible change with non-marginal economic effects.^[29]

When these outcomes are considered within the broader picture of rising global demand for fossil fuels, the environmental impact of the world’s ever-increasing dependence on fossil fuels appears set to worsen the problem of climate change in the coming decades. For most countries, especially OECD states and those with emerging economies, there is a well-established link between supply and use of energy and economic growth.^[30] Recently this was clearly observed in global oil markets. Economic growth and rising demand for oil in the first part of 2008 saw the oil price reach record highs, only to be followed by substantial falls in response to declining demand as a consequence of global financial market turmoil and economic crisis across many countries in the wake of the credit crunch in the second half of 2008.^[31] By reason of the above, the complex interplay of the financial and economic consequences, energy supply and use, and international environmental law and climate change law, lies beneath much of the debates surrounding the Kyoto Protocol and a possible successor to this international instrument. At the 2009 annual meeting of the G8 Summit, the world’s leading economies acknowledged these inherent links between energy, climate change and economic growth:

The interlinked challenges of climate change, energy security and the sustainable and efficient use of natural resources are amongst the most important issues to be tackled in the strategic perspective of ensuring global sustainability. ...

Science clearly shows that anthropogenic greenhouse gas emissions — mainly produced by the use of fossil fuels — are provoking dangerous climate change, putting at risk not only the environment and ecosystem services but the very basis of our present and future prosperity. The costs of inaction far outweigh the costs of moving towards low-carbon societies. At the same time, stable and secure energy availability is indispensable for social and economic development; it is essential to ensure global energy security and energy access in developing countries, particularly the most vulnerable. Immediate and resolute action is needed by all countries to build on existing and new technologies and to design and deliver innovative economic, environmental and energy policies.^[32]

B INTERNATIONAL ENVIRONMENTAL LAW AND CLIMATE CHANGE

The relevance of general international law and international environmental law to regulating activities that generate greenhouse gas emissions is significant within the context of climate change. This is especially so in terms of the exploitation of natural resources, especially fossil fuels that are extensively utilised in energy supply and use. Throughout the 1970s and 1980s, the international community expressly recognised the need to impose limitations on environmentally polluting conduct of states. In some instances, international environmental law can be seen as the ‘application of well-established rules, principles and processes of general international law’^[33] to actions of states and non-state actors that impact adversely on the environment. At other times, new areas of international environmental law developed in response to an array of environmental problems, especially those giving rise to transboundary harms.^[34] One of the key impacts of international environmental law has been to fetter states’ prima facie absolute sovereignty over the exploitation of their natural resources and prevent related transboundary environmental harm. In general international law terms, the obligation that ‘states are required ... to take adequate steps to control and regulate sources of serious global environmental pollution or transboundary harm within their territory or subject to their jurisdiction’^[35] is incontestable. The basis of this obligation to protect against transboundary environmental harm can be found in the Trail Smelter Arbitration Tribunal, which concerned transboundary environmental damage to property in the USA resulting from the sulphur dioxide emissions by the Trail Smelter in British Columbia.^[36] More recently, this general obligation of states was reaffirmed by the International Court of Justice in Legality or Threat of Use of Nuclear Weapons (Advisory Opinion),^[37] where the Court stated as follows:

The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.^[38]

The ‘no harm’ principle of international law has broadened over time to encompass a state’s exploitation of its natural resources. This limitation on a state’s sovereign rights was expounded in Principle 21 of the 1972 Declaration of the United Nations Conference on the Human Environment,^[39] commonly referred to as the Stockholm Declaration:

Principle 21

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.^[40]

The first part of this principle clearly enunciates the traditional international law concept of a state’s independence and sovereignty over its internal affairs.^[41] What is most striking about Principle 21 is the qualification contained in the second part. As Pring suggests, this rider reveals the ‘international community’s growing willingness to recognise the environment as an exception to absolute state sovereignty’.^[42] Admittedly, the Stockholm Declaration is a soft law instrument, and not legally binding per se. Nonetheless, since 1972, Principle 21 has assumed a critically important role in the development of international environmental law and states’ practice vis-a-vis their natural resources.^[43] For instance, ten years after the Stockholm Declaration, the General Assembly of the United Nations adopted the World Charter for Nature.^[44] In this soft law instrument, the General Assembly drew attention to the imperative to conserve and maintain the ‘stability and quality of nature’.^[45] This includes controlling and/or avoiding activities that pose a significant risk, or are likely to cause irreversible damage to nature^[46] and the importance of conserving, rather than wasting, natural resources.^[47] Several hard law instruments, especially international environmental law treaties dealing with transboundary air and marine pollution, have also affirmed the normative status of Principle 21.^[48] Moreover, Principle 21 is regarded by the UN General Assembly as reflecting customary international law.^[49] Further to Principle 21 and the need to fetter a state’s sovereignty over the exploitation of its natural resources, the international community has also given greater recognition to the need to strike a balance between competing social, economic and environmental interests of the global community. As noted by the Bruntland Commission in 1987, the principles of sustainable development and inter-generational equity require current generations to pursue ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.^[50] As discussed below, Principle 21 and other environmental principles have found their way into the current international legal framework of climate change.

C INTERNATIONAL CLIMATE CHANGE LAW

In a 1988 resolution, the General Assembly expressly stated that climate change was a common concern of mankind and noted that this required urgent action by all states.^[51] In the same year, the World Meteorological Organization and the United Nations Environment Programme established the Intergovernmental Panel on Climate Change.^[52] Since its establishment, the IPCC has issued four reports, all of which make it abundantly clear that human activity is contributing to the global environmental dilemma of climate change.^[53] Negotiations on a framework convention on climate change were formally launched by the UN in 1990 and culminated in the United Nations Conference on Environment and Development (‘UNCED’), held in Rio de Janeiro, Brazil in June 1992.^[54] Outcomes of this international meeting include the Rio Declaration on Environment and Development (‘Rio Declaration’)^[55] and the UNFCCC, both of which were agreed to by an unprecedented number of states.^[56] Although not legally binding, the Rio Declaration set out a number of key principles. In addition to reiterating Principle 21 of the Stockholm Declaration, albeit in a more modest form,^[57] sustainable development received almost universal acknowledgement and support from the international community at this time.^[58]

1 The 1992 UN Framework Convention on Climate Change

The provisions enunciated in the Rio Declaration are broadly drafted and encompass many aspects of environmental protection and conservation. By contrast, the UNFCCC is specifically directed towards greenhouse gas emissions and the global problem of climate change. Article 1 of the Convention defines climate change as

a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.^[59]

The same article defines greenhouse gases as ‘gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and re-emit infrared radiation’.^[60] Article 2 sets out the key objective of the UNFCCC:

The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.^[61]

States’ primary international obligations in this regard include establishing national inventories of greenhouse gas emissions and sinks and integrating climate change considerations into ‘national social, economic and environmental policies’.^[62] Further, in seeking to meet the Convention’s ultimate objective, states are required to take account of principles of international environmental law, especially inter-generational equity, the precautionary approach, sustainable development, and common but differentiated responsibilities.^[63]

The UNFCCC recognises the difference between State Parties in several ways including; first, states are characterised according to their individual contributions to the creation of greenhouse gas emissions, which historically have mostly been generated by industrialised countries; secondly, the UNFCCC recognises the different capacity of states to respond to climate change; and finally, states are distinguished on the basis of whether they are Annex I, Annex II or non-annex countries and subject to different obligations accordingly.^[64] Annex II countries, for instance, consist of those ‘industrialized countries that were members of the Organisation for Economic Co-operation and Development (the OECD) in 1992’.^[65] Annex I is broader and includes all of the OECD member states and several countries with economies in transition to market economies.^[66]

Further, the UNFCCC makes it clear that ‘developed country Parties should take the lead in combating climate change and the adverse effects thereof’.^[67] Most notably, all Annex I States are encouraged to pursue national climate change policies and measures that seek to meet two concurrent outcomes, namely the mitigation of greenhouse gas emissions and the protection of greenhouse gas sinks.^[68] Annex II states (OECD member states) are further obliged to assist developing countries with climate change adaptation and mitigation responses by providing, inter alia, the essential financial resources to assist with meeting the costs of adaptation and facilitating the ‘transfer of, or access to, environmentally sound technologies’.^[69] As discussed subsequently, these historic distinctions form much of the basis of the current dispute between State Parties to the UNFCCC and Kyoto Protocol.

2 The Kyoto Protocol

Despite its auspicious beginnings, it soon became apparent that the obligations set down in the UNFCCC needed to be strengthened considerably in order for effective mitigation of global greenhouse gas emissions to occur. Consequently, an additional instrument (the Kyoto Protocol) was agreed to at the 1997 UN Climate Change Conference (‘COP3’).^[70] The Kyoto Protocol is different to the UNFCCC in two main ways. First, the emission reductions obligations set out in the Kyoto Protocol are no longer discretionary. Industrialised countries are now required, rather than encouraged, to reduce their greenhouse gas emissions in accordance with their respective targets.^[71] Known as Annex B countries, most industrialised states are obliged under the Kyoto Protocol to meet quantified emission targets (an average of 5 per cent below 1990 levels) during the commitment phase from 2008 to 2012.^[72] Interestingly, Australia was one of only three nations who were granted a reprieve on this emission target and in fact was rewarded with an emissions target of 8 per cent above its 1990 levels. Secondly, the Kyoto Protocol has introduced three flexible market based mechanisms to assist states to meet their emissions targets. These are an international emissions trading system, often referred to as the carbon market,^[73] the Clean Development Mechanism (‘CDM’) and joint implementation (‘JI’).^[74]

In short, the international emissions trading system allows those states who exceed their emission targets to buy additional emission units from states with excess capacity. The other two Kyoto Protocol mechanisms operate on a different basis. The CDM is often referred to as an environmental investment and credit scheme. Under the CDM, an Annex B state can meet its emission targets, in part, by investing in emission reduction or removal projects in a developing country.^[75] The resulting emission reductions or removal must be in excess of what would have normally occurred. In such instances, emission reductions from a CDM project create certified emission reduction credits (‘CERs’), which in turn can be traded or used by the Annex B State as an offset against its Kyoto Protocol emissions target. The third mechanism, JI, is a variant on the CDM investment and credit scheme and facilitates emission reduction or removal projects and creates emission reduction units (‘ERUs’). As with the CDM, emissions achieved through JI projects can be traded or used as an offset against a state’s Kyoto Protocol mission targets. The major difference between JI and CDM is that in the former it can only be applied to those projects involving Annex B states and/or those states who have undertaken an emissions reduction obligation in accordance with the Kyoto Protocol.

During subsequent meetings of the state parties to the UNFCCC, concerns were raised about the rapid deforestation and forest degradation occurring in developing countries. Such change of land use action not only destroys tropical and other native forests, but also brings with it serious implications for greenhouse gas emissions and climate change. In 2008, several UN bodies released a report on this issue and commented:

The Fourth Assessment Report of the Intergovernmental Panel on Climate Change indicates that the forestry sector, mainly through deforestation, accounts for about 17% of global greenhouse emissions, making it the second largest source after the energy sector. In many developing countries, deforestation, forest degradation, forest fires and slash and burn practices make up the majority of carbon dioxide emissions. ... Reduced deforestation and forest degradation may play a significant role in climate change mitigation and adaptation, can yield significant sustainable development benefits, and may generate a new financing stream for sustainable forest management in developing countries. If cost-efficient carbon benefits can be achieved through REDD, increases in atmospheric CO2 concentrations could be slowed, effectively buying much needed time for countries to move to lower emissions technologies.^[76]

Because of the growing concern over unchecked deforestation, a new mechanism for reducing emissions from deforestation and degradation (‘REDD’) was introduced into the international climate change dialogue. This was first raised at the 2005 COP11 in Montreal and subsequently endorsed at the 2007 COP13 in Bali.^[77] The REDD mechanism was included in the 2007 Bali Action Plan, which expresses the intention that this be added to the existing Kyoto Protocol mechanisms in any post–2012 instrument.^[78]

III THE COPENHAGEN LEGACY

A THE ROAD TO COPENHAGEN

From the perspective of significant developments in international climate change law, 2007 was a pivotal year. The IPCC released its fourth and final assessment report on climate change, concluding with more than 90 per cent certainty that human activities, particularly the increased use of fossil fuels, are the major cause of global warming.^[79] The UNFCCC Conference of Parties (‘COP’) adopted the Bali Action Plan at its December 2007 meeting (‘COP13’) and agreed to enter negotiations for a new international agreement on climate change to be finalised by the end of 2009. More specifically, it was agreed that the COP13:

Decides to launch 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.[80]

To meet these goals, the Bali Action Plan set down an extensive framework for the inter-state party negotiations and future cooperative action on climate change mitigation. In addition to agreeing to actively pursue reductions in emissions from deforestation, the key issues to be addressed included: ‘a shared vision for long-term cooperative action, including a long-term global goal for emission reductions’; ‘enhanced national and international action on mitigation of climate change, including quantified emission limitation and reduction objectives by all developing countries; and enhanced action on adaptation, technology development and transfer and the provision of financial resources and investment’.^[81] A new subsidiary body, the Ad Hoc Working Group on Long-term Cooperative Action (‘AWG-LCA’), was established to undertake this process.^[82] This new body was mandated to complete its work on the comprehensive process for long term co-operative action within two years and present the outcomes of to the COP15 in Copenhagen.^[83] The AWG-LCA was joined in its efforts by the existing Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (‘AWG-KP’).^[84]

The 2008 COP was held in Poznan (‘COP14’). At that time, the State Parties committed to shifting into full negotiating mode and drafting ‘an ambitious and effective international response to climate change’ that could be agreed to in Copenhagen in December 2009.^[85] The two Working Groups, AWG-LCA and AWG-KP were assigned the primary responsibility for undertaking the process of moving forward on a new post–2010 agreement. Consequently, throughout 2009, many efforts were made to reach consensus on a draft agreement for consideration in Copenhagen. However, it became apparent at the COP13 in Bali, 2007 that this was going to be a much more difficult task than previously anticipated. Despite the UNFCCC treaty objective of stabilising atmospheric concentrations of greenhouse gas emissions ‘at a level that would prevent dangerous anthropogenic interference with the climate system’, the negotiation process on post–2012 commitments was besieged by a torrent of political rhetoric, grandstanding and seemingly endless negotiations on the whole gamut of climate change issues. That aside, the most obvious sign as to the unlikely prospect of a new international agreement was the inability of the two Working Groups to make significant progress towards a final draft text in time for the COP15/CMP5 in December 2009.

B KEY ASPECTS OF THE COPENHAGEN CLIMATE CHANGE DEBATE

The COP15/CMP5 was attended by 119 world leaders, the ‘largest gathering of heads of state and government in the history of the UN’.^[86] While it is not possible to canvass all of the disagreements characterising international climate change debates, at the heart of the recent Copenhagen debates were the ongoing twin issues of accountability and responsibility. In terms of accountability, there has been a long held difference of opinion between states regarding who should be held accountable for the global predicament of greenhouse gas emissions and climate change. Historically emissions have been generated by industrialised states, but expectations are that emerging economies and developing nations will be the major source of greenhouse gas emissions in the future. Indeed, even now some of the larger emerging economies such as China, India and Brazil have entered the top ranks of greenhouse gas emitters, with other emerging economies following a similar path.^[87] However, given that the majority of past greenhouse gas emissions have been produced by developed states, developing states, especially those with emerging economies, want to hold the developed world accountable for the state of the global climate. Ultimately, they want developed states to assume responsibility for the financial costs of current and future action on climate change and greenhouse gas emissions. The inherent corollary of this is the position of developed countries who, while acknowledging their key role in the historic circumstances of climate change, point to their Kyoto Protocol emission reduction targets and a myriad of national and supranational abatement and mitigation measures, all of which have resulted in a decline in the OECD’s contribution to total global greenhouse gas emissions over the past three decades.^[88] Moreover, as was evidenced by the dialogue at Copenhagen, several emerging economies, namely China and India, are already making significant contributions to global emissions, with China having the dubious title of the world’s current leading emitter.^[89]

Within this framework of different perspectives the major issues raised by developing states include transfer of relevant technology (especially clean-energy technology), reductions in emissions from deforestation and forest degradation, and non-binding emission reduction targets. The means, methods and sources of finance for climate change adaptation and mitigation actions are also of vital importance. By contrast, the most significant points of contention for industrialised states turned out to be future emission reduction targets and financial responsibilities. In terms of targets, debate has ensued on the magnitude of future targets, the extent to which they ought to be binding in nature and the timeframe for meeting any potential future emission reduction targets. During the pre-Copenhagen climate change negotiations, the benefits of having short and medium term binding targets were proposed as a means for overcoming what is seen as the potential risk of inaction on climate change responses in the intervening years between now and any potential future long term targets.^[90] In short, this proposal centred on the notion that that the current mid-term (2020) emissions reduction undertakings of many industrialised states ought to be turned into legally binding targets as part of the 2009 Copenhagen agreement.^[91] As it turned out, such an outcome proved to be far too contentious for any agreement to be reached. In response to the pressure on Annex I Parties, these states proposed that emerging economies such as China, India and Brazil should also be subjected to sizeable binding emissions targets, eg, limit emissions by 15–30 per cent by 2020. Likewise, Annex I Parties called for greater transparency on national mitigation actions, in accordance with the Bali Action Plan’s intent that such actions should be ‘measurable, reportable and verifiable’.^[92] Given the possible adverse impact of curbing emissions (in a large part by reduced reliance on fossil fuel sourced energy) on economic growth mentioned previously in this paper, emerging economies have not been overly enthusiastic with these ideas. Indeed, both before and during the Copenhagen COP15 they strenuously rejected it.^[93]

A further aspect of the debate between developed and developing countries that emerged at the COP15 was the proposed legal nature of any post–2012 agreement. Rather than continuing with the existing Kyoto Protocol, many Annex I Parties, including the USA, favoured the introduction of a completely new Protocol to the UNFCCC; one which contained commitments not only for Annex 1 Parties as is now the case, but also for the major emerging economies such as China, India, Mexico and Brazil.^[94] The latter countries, together with the G77 States, the Gulf countries and the Alliance of Small Island States (‘AOSIS’), all argued strongly against such an outcome. Instead of a new instrument, these states argued for a ‘two-track’ process, whereby ‘a new instrument that would implement the key elements of the Bali Action Plan’ would be introduced in parallel to the existing Kyoto Protocol, which would simultaneously have its life extended.^[95] According to this proposal, the amended Kyoto Protocol would continue to bind Annex I Parties and set new emissions targets for them only at this point in time. As things transpired, world leaders from a relatively few number of states, the USA and the four of the large emerging economies, China, Brazil, India and South Africa, engaged in a negotiation process that produced the Copenhagen Accord.^[96]

While this process and its outcome have since been endorsed, albeit in principle

only by the COP15, this blatantly unbalanced approach to negotiating an international agreement received widespread criticism from many other State Parties.^[97] For instance, one State Party’s chief negotiator is reputed to have stated, ‘it looks like we are being offered 30 pieces of silver to betray our people and our future’.^[98] At the conclusion of the COP15/CMP5, the European Union, representing its 27 member states, expressed their disappointment with the processes, but signalled their likely acceptance the Copenhagen Accord (the ‘Accord’) in due course.^[99]

C KEY OUTCOMES FROM COPENHAGEN

The key decisions are set out in Table 2 and cover a range of matters including the Accord, REDD, Kyoto Protocol mechanisms and capacity building under both the UNFCCC and the Kyoto Protocol. As is patently obvious from these and related outcomes, the plan to conclude a new international climate change agreement was not successful.

Table 2: Key Decisions of COP15 and CMP5^{[100] [101][102]}

^{[103] [104] [105] [106] [107] [108]}

Moreover, many of the key issues that were meant to be on the agenda for resolution at the COP15 remain unanswered. While there is scant evidence explaining the actual reasons that led to this outcome, it has been suggested that much of the failure of the Copenhagen negotiations resulted from the uncompromising stance of emerging economies such as China and India.^[109] Given the close links between energy supply and use and economic growth discussed earlier in this paper, such responses by emerging economy states are not that surprising. In any event, it is still useful to consider the content and implications of the Accord and the two important decisions pertaining to the two Ad Hoc Working groups, the AWG-LCA and the AWG-KP.

1 The Copenhagen Accord 2009

(a) Substantive Content of the Accord

In substantive terms, the Accord has achieved several noteworthy outcomes regarding several of ‘critical issues that have been on negotiators’ agenda for the past two years’.^[110] As is evident from the Accord itself, the most significant concerns commitments by Annex I (developed states) to:

(a) implement new emissions reductions targets for 2020 and notify the UNFCCC Secretariat by 31 January 2010 of these targets;^[111] and

(b) make financial contributions to assist with mitigation and adaptation activities.^[112]

With respect to targets, a range of proposals regarding long term emission targets (2050 goals), limits on rises in global temperatures (2°C or 1.5°C), and stabilisation of greenhouse gas concentrations (450 ppm CO2-e or 350 ppm CO_2-e) were put forward during the course of the Copenhagen meeting. The Accord recognises the ‘scientific view that the increase in global temperature should be below 2 degrees Celsius’ and that ‘deep cuts in global emissions are required’ to meet the overall objective of the UNFCCC.^[113] However, it is noticeably silent on two issues that are fundamental to stabilising greenhouse gas emissions and meeting the ‘two degrees target’. First, there is no agreement that emissions should peak by 2015–20. Secondly, there are no commitments on long-term emissions targets to ensure significant global mitigation by 2050.^[114] That being said, the final clause of the Accord is a curious addition. This not only calls for an assessment of the Accord’s implementation by 2015, but also suggests that this ought to include ‘consideration of strengthening the long-term goal referencing various matters presented by the science, including in relation to temperature rises of 1.5 degrees Celsius’.^[115] Given the overall lack of transparency with which the annual climate change conferences are conducted, it is difficult to know the exact causes of these outcomes. However, it has been suggested that part of the failure to achieve consensus, especially on long-term targets, resulted primarily from objections raised by China and India.^[116] Consequently, the prima facie conclusion that can be drawn from these outcomes is that the COP15/CMP5 failed to meet the primary objective set out by the Bali Action Plan, namely ‘a shared vision for long-term cooperative action’.^[117] Moreover, as things currently stand, State Parties have no guidance on the magnitude and timing of long-term emission reduction targets.

The financial commitments of Annex I Parties answer, in part at least, the Bali Action Plan’s goal of enhancing financial resources for climate change mitigation and adaptation.^[118] Clause 8 of the Accord sets out the financial commitments of Annex I Parties over two relevant periods: (i) 2010–12 and (ii) by 2020.^[119] This clause stipulates that during the first commitment period new and additional funding approaching US$30 billion will be provided by Annex I Parties. The same clause also binds Annex I parties to the provision of further significant funding, by requiring them to mobilise ‘jointly USD 100 billion dollars a year by 2020 to address the needs of developing countries’.^[120] This component of the additional funding is, however, conditional, whereby the 2020 financial commitment is provided within the ‘context of meaningful mitigation actions and transparency on implementation’. It is intended that this new and additional funding will come from ‘a wide variety of sources, public and private, bilateral and multilateral, including alternative sources of finance’, and that a ‘significant portion of such funding should flow through the Copenhagen Green Climate Fund’.^[121]

By contrast, Non-Annex I Parties (developing states, least developed countries, and small island developing states) are not subject to any such binding legal obligations vis-a-vis emission mitigation or reduction targets.^[122] However, pursuant to the Accord, developing states agree to ‘implement nationally appropriate mitigation actions’ (‘NAMAs’) and notify the UNFCCC Secretariat of such proposed actions by either 31 January 2010 or some later date during the two year reporting cycle.^[123] Furthermore, those mitigation actions for which Non-Annex I Parties seek international support shall be ‘recorded in a registry along with relevant technology, finance, and capacity building support’ and ‘subject to international measurement, reporting, and verification’.^[124] Such transparency measures accord with the conditional finance that is to be provided by Annex I Parties in the second funding period up to 2020. As noted in Table 2 above, the COP15 also adopted a decision on national communications by Non-Annex I Parties, which extended the assistance provided to these states by the Consultative Group of Experts on National Communications from Parties not included in Annex I to the Convention for a further two years.^[125] This group provides technical advice and support to Non-Annex I Parties, with the aim of facilitating better practices to develop with the process and preparation of their respective national communications.^[126] When this decision is taken together with the Accord, it appears that progress has definitely been made on the transparency vis-a-vis national mitigation actions.^[127] Additionally, although the imposition of conditions on future funding may be seen by some as inappropriate and/or inadequate, it cannot be denied that the proposed funding arrangements provided for by the Accord are a major step forward, especially on the problematic question of who is to finance climate change mitigation actions. To this end, the Bali Action Plan’s goal of enhanced action on the provision of financial resources will be achieved by the fulfilment of these aspects of the Accord.

Other developments envisaged by the Accord include the establishment of several new bodies. The first is a high-level panel to ‘study the contribution of the potential sources of revenue, including alternative sources of finance’.^[128] The two other bodies are the Copenhagen Green Climate Fund and the Technology Mechanism. The objective of the mechanism is to ‘accelerate technology development and transfer in support of action on adaptation and mitigation’,^[129] whilst the Fund is to be an

operating entity of the financial mechanism of the Convention to support projects, programme, policies and other activities in developing countries related to mitigation including REDD-plus, adaptation, capacity-building, technology development and transfer.^[130]

At one level, it can be said that both of these mechanisms are examples of the types of enhanced action envisaged by the Bali Action Plan noted earlier in this paper. To that end, again, the sections of the Accord demonstrate a move in the desired direction. However, until further explanation is provided as to how these proposed mechanisms will actually achieve their objectives, it is not possible to assess their viability and utility.

(b) Legal Status

It is unlikely that the Accord is a legally binding instrument. Several reasons can be advanced for this status. First and foremost, the Accord, was drafted by only a few State Parties, namely the USA and what has become known as the BASIC group, which consists of the four major emerging economies of Brazil, South Africa, India and China. As such, the document and the closed door process of negotiations by a self-designated few, gave rise to serious condemnation from all quarters. Secondly, whilst the Accord was agreed to, albeit in principle, it was simply noted as a decision of the COP15.^[131] Thus, unlike it famous predecessor, the Rio Declaration, the Accord was not officially adopted by the COP15. This outcome can be attributed to the fundamentally flawed negotiation process. As Fowler states:

[The Accord] was reported to have been negotiated by a small group of parties (USA, China, India, Brazil and South Africa) and was then submitted to the COP with the intention that it would be agreed through a decision of the COP and become operational immediately. However, a small number of Parties (including Tuvalu, Bolivia, Venezuela and Pakistan) indicated that they could not support the Accord. As a result, and in order to avoid having to record dissenting votes, the COP decided simply to ‘take note’ of the Accord.^[132]

Being characterised by a distinct lack of universal formal consent of State Parties, the Accord at this stage arguably does not even assume the status of a soft law instrument. This gives it ‘a unique status in international law, having emerged from, but not been adopted by, the conference’.^[133] Consequently, the failure of the COP15/CMP5 to actually agree to the Accord suggests that the key commitments and goals outlined in the preceding sections are of no legal force and lack certainty as to their current and future viability. While numerous states may formally acknowledge their acceptance of the Accord by 31 January 2010,^[134] it is possible that this instrument will not become fully operational until a formal decision to that effect is reached at the next COP16 in Mexico 2010. That being so, it is interesting to note in passing that several State Parties, including the EU, Japan and the USA have already made commitments that will provide significant financial contributions to the funding required by the Accord during the first proposed commitment period of the 2010–12.^[135]

(c) AWG-LCA and AWG-KP

The decisions by the COP15 and CMP5 to extend the mandates of their respective subsidiary bodies, the AWG-LCA and the AWG-KP, are interesting from a number of perspectives.^[136] On a positive note, these working groups can now continue their work on long term co-operative action and further commitments of Annex I Parties (developed states) and, as requested, present the outcomes of their work at the next UNFCCC and Kyoto Protocol meeting in Mexico City in December 2010 (‘COP16/CMP6’). However, the tasks of these working groups will be complicated by a further omission in the Accord, namely the lack of consensus on the legal character of any future agreement to come into effect post–2012.^[137] This may have significant consequences for the future work of the two ad-hoc working groups, but it may not be possible to ascertain the full extent of such until the 2010 COP16.

IV AUSTRALIA AND CLIMATE CHANGE:

WHERE TO FROM HERE?

The consequences of climate change for Australia has been spelt out in a myriad of studies by both public and private bodies, including the 2008 Garnaut Review^[138] and the Lowy Institute for International Policy.^[139] The latter described the potential adverse impact on Australia in the following terms:

even if not catastrophic in themselves, the cumulative impact of rising temperatures, sea levels and more mega droughts on agriculture, fresh water and energy could threaten the security of states in Australia’s neighbourhood by reducing their carrying capacity below a minimum threshold, thereby undermining the legitimacy and response capabilities of their governments and jeopardising the security of their citizens. Where climate change coincides with other transnational challenges to security, such as terrorism or pandemic diseases, or adds to pre-existing ethnic and social tensions, then the impact will be magnified.^[140]

It was not surprising therefore to see that since ratifying the Kyoto Protocol in 2007, Australia’s federal government has engaged in several important national actions directed towards mitigation and meeting its international obligations under the UNFCCC and Kyoto Protocol. A number of climate change developments have occurred in the past two years, including the:

(a) introduction of the National Greenhouse and Energy Reporting Act 2007 (Cth);^[141]

(b) establishment of the Garnaut Climate Change Review to investigate climate change, greenhouse gas emissions abatement policy and market mechanisms and publication of its final report in 2008;^[142] and

(c) creation of the Working Group on Climate Change and Water to ensure an effective national response to climate change.^[143]

In its 2008 Green Paper^[144] and White Paper,^[145] the federal government set out its Carbon Pollution Reduction Scheme. This Scheme is a culmination of policy developments over the past decade and comprises six separate pieces of legislation, which have been the source of ongoing debate in the federal Parliament.^[146] In its current form, the proposed Carbon Pollution Reduction Scheme is built on three pillars: (i) reducing Australia’s carbon pollution; (ii) adapting to unavoidable climate change; and (iii) helping to shape a global solution.^[147] A central mechanism of the Carbon Pollution Reduction Scheme is the introduction of an Australian emissions trading system (‘ETS’), which is proposed to achieve emission reductions of 60 per cent below 2000 levels by 2050.^[148] To date however, the proposed ETS has not received bipartisan support in federal Parliament and there is no guarantee that this will be forthcoming in the near future. Regardless, three other measures have been identified as important for dealing with climate change: (i) an expanded Renewable Energy Target; (ii) increased investment in renewable energies, carbon capture and carbon storage; and (iii) additional action on energy efficiency.^[149] Consequently, the federal government has suggested that its planned Carbon Pollution Reduction Scheme will reduce greenhouse gas emissions through the implementation of various policy options, including:

(i) imposing a price on carbon pollution through the ETS;

(ii) establishing technology and efficiency standards;

(iii) supporting research and development of low-emission technologies; and

(iv) instituting direct command and control regulation of emission sources.^[150]

Furthermore, the federal government has observed that early responses on climate change mitigation actions are crucial for minimising the costs of mitigation and adaptation:

The reasons for pursuing coordinated global action are compelling: early action accelerates cost reductions in low-emission technologies, helps prevent lock-in of more emission-intensive industry and infrastructure, and minimises distortions associated with trade-exposed industries.^[151]

These actions are a marked improvement on the relative inaction of the previous conservative federal government, which had, inter alia, refused to ratify the Kyoto Protocol. Furthermore, since ratifying the Kyoto Protocol in 2007,^[152] the Rudd federal government has been pursuing a comprehensive strategy for tackling climate change in Australia, based on two time scenarios for its emissions targets:

(i) a medium-term target range to reduce emissions by between 5 and 15 per cent below 2000 levels by 2020; and

(ii) a long-term goal of reducing Australia’s greenhouse gas emissions to 60 per cent below 2000 levels by 2050.^[153]

The failure of the COP15 to adopt a new international climate change instrument to take effect post–2012 released Australia from having to commit to either of these targets in Copenhagen. As discussed previously, in its current form, the Accord is silent on the magnitude of 2020 and 2050 emission reduction targets for developed countries such as Australia. Nevertheless, Australia has been one of the first State Parties to formally accept the Accord and will have to advise the UNFCCC Secretariat of its 2020 emission target by 31 January 2010.^[154] There is little to be gained in trying to speculate on where in the 5 per cent to 20 per cent range Australia’s target will fall. However, given the general lack of consensus by State Parties at the COP15, and the failure to finalise a new post–2012 climate change treaty, it would not be unreasonable for Australia’s 2020 target to be at the lower end of the range.

V CONCLUSIONS

In spite of its lack of legally binding character, there is no doubt that the political compromise, for want of a better term, that constitutes the Accord will add yet another chapter to the already extensive body of international climate change documentation. At the very least, the Accord has set out a basis of sorts for the expected ongoing negotiations on a legally binding instrument. From a positive viewpoint:

Three key things that Copenhagen produced are: 1) It raised climate change to the highest level of government; 2) The Copenhagen Accord reflects a political consensus on the long-term, global response to climate change; 3) The negotiations brought an almost full set of decisions to implement rapid climate action near to completion.^[155]

With these three things in mind, the Accord’s current framework may go someway to helping resolve the current deadlock between developed countries such as the USA, emerging superpower economies such as China, India and Brazil, and developing countries with respect to emission reduction targets and other mitigation and adaption commitments. Whilst Australia’s decision on 2020 emission targets is yet to be known, it is clear from the progress with national climate change mitigation actions that the federal government is working on meeting its international climate change obligations. However, neither Australia, nor the rest of the State Parties to the UNFCCC and Kyoto Protocol have expressly acknowledged, through decisions of the COP/CMP, the harmful impact of energy supply and use on climate change and the imperative for State Parties to take steps to reign in the extent to which fossil fuels can be part of the global energy supply and use mix. As and until this fundamental source of greenhouse gases is properly and adequately dealt with by the COP, it is unlikely that concentrations of greenhouse gases will be stabilised at an acceptable level and doubtful whether the objective of the UNFCCC will ever be met.

^[1] United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 1771 UNTS 107, art 7(4) (entered into force 21 March 1994) (‘UNFCCC’).

^[2] Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, 2303 UNTS 148 (entered into force 16 February 2005) (‘Kyoto Protocol’).

^[3] The COP is the principal supervisory body under the UNFCCC, opened for signature 4 June 1992, 1771 UNTS 107, art 7(4) (entered into force 21 March 1994) whilst the CMP, known more specifically as the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol, is the principal supervisory body under the Kyoto Protocol. For detailed information on these key bodies and the full texts of these international climate change law instruments see UNFCCC <http://unfccc.int/2860.php> at 22 July 2010.

^[4] Yvo de Boer, UNFCCC Executive Secretary, Press Briefing (Bonn, Germany, 14 August 2009).

^[5] In 2009 the first three rounds of formal negotiations and informal consultations on a new climate change instrument took place in Bonn, 29 March–8 April and 10–14 August. Two further sessions were held prior to Copenhagen, namely 28 September–9 October in Bangkok and 2–6 November in Barcelona. See UNFCCC, Meetings Archive <http://unfccc.int/meetings/archive/items/2749.php> at 22 July 2010.

^[6] For full text, see ‘Decision 2/CP.15’ in UNFCCC, Report of the Conference of the Parties on its Fifteenth Session, held in Copenhagen form 7 to 19 December — Decisions Adopted by the Conference of the Parties, UN Doc FCCC/CP/2009/11/Add.1 (2009) (‘COP Fifteenth Session’).

^[7] Prior to COP15/CMP5, there was already widespread agreement that global mean temperature should be prevented from increasing more than 2°C above pre-industrial levels. See, eg, Intergovernmental Panel on Climate Change, IPCC First Assessment Report (FAR) (1990); 1992 Supplementary Reports (1992); IPCC Second Assessment Report: Climate Change 1995 (SAR) (1995); IPCC Third Assessment Report: Climate Change 2001 (TAR) (2001); IPCC Fourth Assessment Report: Climate Change 2007 (AR4); G8 Summit, G8 Leaders Declaration: Responsible Leadership for a Sustainable Future (6 April 2009) L’Aquila, Italy [65] <www.g8italia2009.it/static/G8_Allegato/G8_Declaration_08_07_09_final,0.pdf> at 23 July 2010; Declaration of the Leaders: The Major Economies Forum on Energy and Climate (2009) [1] <www.g8italia2009.it/static/G8_Allegato/MEF_Declarationl.pdf> at 23 July 2010; European Commission, Towards a Comprehensive Climate Change Agreement in Copenhagen, 28 January 2009 COM(2009) 39 Final.

^[8] See below, Part IV.

^[9] Don Henry, Copenhagen Deal Leaves Australia at High Risk (2009) Australian Conservation Foundation <www.acfonline.org.au/articles/news.asp?news_id=2630&eid=16932> at 5 May 2010.

^[10] European Commission, EU Action Against Climate Change: Leading Global Action to 2020 and Beyond (2009).

^[11] Ibid.

^[12] IPCC, Fourth Assessment Report (AR4): Climate Change 2007 — Synthesis Report (2007). The Report defines climate change as ‘a change in the state of the climate that can be identified (eg. using statistical tests) by changes in the mean and/or the variability of its properties, and that persists for an extended period, typically decades or longer. It refers to any change in climate over time, whether due to natural variability or as a result of human activity’: at 30.

^[13] Ibid 31.

^[14] Ibid 37.

^[15] Ibid. It is important to appreciate the significance of the terminology applied here, high confidence. The IPCC defines this term, in the context of the ‘degree of confidence in being correct’, as ‘about 8 of 10 chance’: see ‘1.6 The IPCC Assessments of Climate Change and Uncertainties’ in IPCC, Fourth Assessment Report (AR4): Climate Change 2007 — Working Group I: The Physical Science Basis (2007).

^[16] European Commission, EU Action against Climate Change, above n 10, 5. See also above n 7.

^[17] European Commission, Building a Post-2012 Global Climate Regime: The EU’s Contribution (2010).

^[18] IPCC, Synthesis Report, above n 12, 36–7.

^[19] Ibid 36.

^[20] This is based on the most recent greenhouse gas emissions data available at the time of writing this paper, which is set out in Australia’s National Greenhouse Accounts 2009, produced annually by the Department of Climate Change and including the following reports: (i) National Greenhouse Gas Inventory 2007; (ii) National Inventory by Economic Sector 2007; (iii) State and Territory Greenhouse Gas Inventories 2007; (iv) National Inventory Report 2007 (Australia’s official submission to the UNFCCC); (v) The Australian Government’s Initial Report under the Kyoto Protocol (2008) <http://www.climatechange.gov.au/publications/international/unfccc-report.aspx> at 7 May 2010. See generally, Rowena Cantley-Smith and Diana Bowman, ‘Energy and the Environment: Introduction to Australian and International Perspectives’, in Rowena Cantley-Smith and Diana Bowman (eds), GreenPower: An Environmental Audit of the National Electricity Markets (2009) 1, 14–16.

^[21] Ibid.

^[22] Australian Government, National Inventory Report 2007, above n 20, 20.

^[23] Ibid 25.

^[24] Ibid 22.

^[25] Ibid 26.

^[26] Based on data set out in Table ES.1 and Table 2.1 in Australian Government, National Inventory Report 2007, above n 20, 2 and 21 respectively.

^[27] Here, the figures for Australia’s total level of greenhouse gas emissions exclude land use, land use change and forestry (‘LULUCF’) as this sector varies from year to year between a net source and net sink, but is tending towards being a net source of emissions, eg, in 2007 it was a net source of greenhouse gas emissions, namely 284.7 Mt CO2-e: see Australian Government, National Inventory Report 2007, Volume 1, above n 20, 1.

^[28] Nicholas Stern, Cabinet Office HM Treasury, The Economics of Climate Change: The Stern Review (2007).

^[29] Ibid 23.

^[30] See also International Energy Agency (IEA), World Energy Outlook (2006), (2008) and (2009).

^[31] See also IEA, The Impact of the Financial and Economic Crisis on Global Energy Investment (2009) and IEA, World Energy Outlook (2009); International Monetary Fund (IMF) World Economic Outlook: Crisis and Recovery (April 2009); Stern, above n 28; Australian Government, Securing Australia’s Energy Future: White Paper (2004); Ross Garnaut, The Garnaut Climate Change Review: Final Report (2008).

^[32] G8 Summit, G8 Leaders Declaration, above n 7, [60]–[61].

^[33] Patricia Birnie and Alan Boyle, International Law and the Environment (2^nd ed, 2002) 79.

^[34] Ibid. See also international environmental law treaties specifically dealing with transboundary environmental harm such as the Convention on Long-range Transboundary Air Pollution, opened for signature 13 November 1979, 1302 UNTS 217 (entered into force 16 March 1983); Vienna Convention for the Protection of the Ozone Layer, opened for signature 22 March 1985, 1513 UNTS 293 (entered into force 22 September 1988); Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, opened for signature 23 March 1989, 1673 UNTS 57 (entered into force 5 May 1992) and a host of related Protocols to the same effect.

^[35] Birnie and Boyle, above n 33, 109.

^[36] Trail Smelter Arbitration Tribunal (United States of America and Canada), 33 AJIL 182 (1939) and 35 AJIL 684 (1941) 716. See also Reports of International Arbitral Awards, 16 April 1938 and 11 March 1941, Volume III, United Nations, 1905–82, especially 1963.

^[37] [1996] ICJ Rep 226.

^[38] Legality or Threat of Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 241–2 [29] (emphasis added).

^[39] United Nations Conference on the Human Environment, Declaration of the United Nations Conference on the Human Environment — 16 June 1972, UN Doc A/Conf.48/14/Rev.1 (1972).

^[40] Ibid.

^[41] See generally Malcolm N Shaw, International Law (6^th ed, 2008); Ian Brownlie, Principles of International Law (7^th ed, 2008); Antonio Cassese, International Law (2^nd ed, 2005); David John Harris, Cases and Materials on International Law (6^th ed, 2004). See also Birnie and Boyle, above n 33, ch 3.

^[42] George R Pring and Susan Y Noé, ‘The Emerging International Law of Public Participation Affecting Global Mining, Energy and Resources Development’, in Donald N Zillman, Alastair R Lucas and George R Pring (eds), Human Rights in Natural Resource Development (2002) 26–7.

^[43] This influence is revealed in various sources including UN resolutions and a wide range of multilateral treaties such as the Convention on Long-range Transboundary Air Pollution, opened for signature 13 November 1979, 1302 UNTS 217 (entered into force 16 March 1983); Vienna Convention for the Protection of the Ozone Layer, opened for signature 22 March 1985, 1513 UNTS 323 (entered into force 22 September 1988); Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, opened for signature 23 March 1989, 1673 UNTS 57 (entered into force 5 May 1992). See also Birnie and Boyle, above n 33, 91.

^[44] World Charter for Nature, GA Res 37/7, GAOR 37^th sess, 48^th plen mtg, UN Doc A/RES/37/7 (1982).

^[45] Ibid Preamble.

^[46] Ibid [11]–[12].

^[47] Ibid [10].

^[48] See, eg, United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3, arts 192–4 (entered into force 16 November 1994); Birnie and Boyle, above n 33, 91.

^[49] Birnie and Boyle, above n 33, 90. See also Philippe Sands, Principles of International Environmental Law (2^nd ed, 2003).

^[50] Brundtland Commission, World Commission on Environment and Development (‘WCED’), Our Common Future (1987) 43.

^[51] Protection of Global Climate for Present and Future Generations, GA Res 43/53, GAOR, 43^rd sess, 70^th plen mtg, UN Doc A/RES/43/53 (1988).

^[52] The IPCC was established by UNEP and the WMO in 1989, although its initial mandate was envisaged by the Protection of Global Climate for Present and Future Generations, GA Res 43/53, GAOR, 43^rd sess, 70^th plen mtg, UN Doc A/RES/43/53 (1988). For further details on the IPCC see IPCC — Intergovernmental Panel on Climate Change (2010) <www.ipcc.ch/index.htm> at 7 May 2010.

^[53] IPCC, IPCC First Assessment Report (FAR) (1990); 1992 Supplementary Reports (1992); IPCC Second Assessment Report: Climate Change 1995 (SAR) (1995); IPCC Third Assessment Report: Climate Change 2001 (TAR) (2001); IPCC Fourth Assessment Report: Climate Change 2007 (AR4).

^[54] For more information on this conference, see Earth Summit, UN Conference on Environment and Development (1992) (1997) Earth Summit <www.un.org/geninfo/bp/enviro.html> at 7 May 2010.

^[55] United Nations General Assembly, Report of the United Nations Conference on Environment and Development, UN Doc A/CONF.151/26 (1992) (‘Rio Declaration’).

^[56] The United Nations Framework Convention on Climate Change was adopted in New York and opened for signature at the Earth Summit in Rio de Janeiro, Brazil. At this time, the Convention received 154 signatures and subsequently entered into force in 1994.

^[57] This resulted from the inclusion of further words, ‘and development’, which were added by reason of debates about national sovereignty — see Preamble of the UNFCCC, which states, inter alia: ‘Recalling also that States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’ (emphasis added): UNFCCC, opened for signature 4 June 1992, 1771 UNTS 107, Preamble (entered into force 21 March 1994). For discussion of this debate see Sands, above n 49, 54, which notes that these words were not added into art 3 of the Biodiversity Convention or Principle 2(a) of the Forest Principles.

^[58] Rio Declaration, UN Doc A/CONF.151/26 (1992), Principles 3–4.

^[59] As noted by the IPCC, the UNFCCC definition of climate change is different to the definition applied by the IPCC, above n 12.

^[60] UNFCCC, opened for signature 4 June 1992, 1771 UNTS 107, arts 1(2), (5) (entered into force 21 March 1994).

^[61] Ibid art 2 (emphasis added).

^[62] Ibid art 4(1).

^[63] Ibid art 3.

^[64] See, eg, the difference between UNFCCC art 4(1), which applies to all State Parties to the UNFCCC and UNFCCC art 4(2), which applies only to Annex I countries and arts 4(3)–(5) which applies to Annex II countries. Annex I and II (developed states and numerous various states in the process of transition to a market economy) are subjected to more stringent obligations.

^[65] As noted on the UNFCCC official website, Annex II countries are: Australia, Austria, Belgium, Canada, Denmark, European Economic Community, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, United Kingdom of Great Britain and Northern Ireland and the United States of America: UNFCCC, Parties and Observers (2010) <unfccc.int/parties_and_observers/items/2704.php> at 9 May 2010.

^[66] As noted on the UNFCCC official website, Annex I countries include OECD member states, the Russian Federation, the Baltic States, and a number of State from Central and Eastern Europe: Australia, Austria, Belarus, Belgium, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Estonia, European Union, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan. Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom of Great Britain and Northern Ireland, and the United States of America: UNFCCC, Parties and Observers (2010) <unfccc.int/parties_and_observers/items/2704.php> at 9 May 2010.

^[67] UNFCCC, opened for signature 4 June 1992, 1771 UNTS 107, art 3(1), (2) (entered into force 21 March 1994). See also UNFCCC Preamble.

^[68] Ibid art 4(2).

^[69] Ibid art 4(3)–(5).

^[70] Negotiations on the substantive nature of the Kyoto Protocol continued until 2001, at which time a set of detailed rules for the operation and implementation of the Kyoto Protocol were agreed to by the Parties to the Convention: see UNFCCC, Report of the Conference of the Parties on its Seventh Session, Held as Marrakesh from 29 October to 10 November 2001 — Part Two: Action Taken by the Conference of the Parties, UN Doc FCCC/CP/2001/13/Add.1 (2001) (‘The Marrakesh Accords’).

^[71] Kyoto Protocol, opened for signature 16 March 1998, 2303 UNTS 148 (entered into force 16 February 2005). To date, 184 Parties of the UNFCCC have ratified its Protocol.

^[72] Ibid art 3. Not all industrialised states have ratified the Kyoto Protocol, eg, the USA.

^[73] This emissions trading system is not restricted to trade in carbon, but as this is the largest of the six major greenhouse gases, the market is often referred to as the carbon market. Also, more than actual emissions can be traded and sold in this market, including the removal of emissions resulting from land use, land-use change and forestry (‘LULUCF’) activities (eg reforestation) and emission reductions resulting from joint implementation and clean development mechanism projects. See generally, UNFCCC, Emissions Trading (2010) <unfccc.int/kyoto_protocol/mechanisms/emissions_trading/items/2731.php/> at 8 May 2010.

^[74] Kyoto Protocol, opened for signature 16 March 1998, 2303 UNTS 148, arts 17, 12 and 6 respectively (entered into force 16 February 2005).

^[75] The CDM applies to projects for emissions reductions and/or removals: ibid art 12.

^[76] FAO, UNDP and UNEP, UN Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (UN-REDD): Framework Document 20 June 2008 (2008). For detailed information on this initiative see the United Nations Collaborative Programme: UN-REDD Programme (2009) <www.un-redd.org/> at 21 July 2010.

^[77] This was initially proposed by Papua New Guinea and Costa Rica, supported by eight other State Parties in 2005, and then endorsed by a decision of the UNFCCC, Conference of Parties, Thirteenth Session at Bali in 2007. The full details are set out in ‘Decision 2/CP.13’ in UNFCCC, Report of the Conference of the Parties on its Thirteenth Session, Held in Bali from 3 to 15 December 2007: Part Two, UN Doc FCCC/CP/2007/6/Add.1 (2008) 8–10 (‘COP Thirteenth Session’).

^[78] ‘Decision 1/CP.13’ in COP Thirteenth Session, ibid 3 [1].

^[79] IPCC, Synthesis Report, above n 12. See also Stern, above n 28.

^[80] COP Thirteenth Session, UN Doc FCCC/CP/2007/6/Add.1, above n 77.

^[81] Ibid 3 [1(a)–(e)].

^[82] Ibid 5 [2].

^[83] Ibid 5–6 [2]–[13].

^[84] This subsidiary body was established in 2005 at COP11/CMP1 in Montreal and is mandated to work on developing future commitments for Annex 1, under the Kyoto Protocol, for the period beyond 2012. See UNFCCC CMP1, Decision -/CMP.1, Consideration of Commitments for Subsequent Periods for Parties Included in Annex I to the Convention under Article 3, paragraph 9, of the Kyoto Protocol (2005) [2].

^[85] UNFCCC, UN Climate Change Conference, COP 14, Poznań (2008) <unfccc.int/meetings/cop_14/items/4481.php> at 21 July 2010.

^[86] UN Framework Convention on Climate Change Secretariat, ‘Copenhagen United Nations Climate Change Conference Ends with Political Agreement to Cap Temperature Rise, Reduce Emissions and Raise Finance’ (Press Release, 19 December 2009).

^[87] See, eg, International Energy Agency, CO₂ Emissions from Fuel Combustion: Highlights (2009); Encyclopaedia of Earth, Greenhouse Gas Emissions — Perspectives on the Top 20 Emitters and Developed versus Developing Nations (2009) Appendix A.

^[88] See, eg, IEA, Key World Energy Statistics (2009) 45, where the IEA’s most recent data shows that OECD CO₂ emissions have dropped by just over 30 per cent between 1973 (65.8 per cent) and 2007 (44.9 per cent), while China’s emissions have increased by around 360 per cent the same period (from 5.7 per cent to 21.0 per cent). Similar relative increases in CO₂ emissions are also shown for the Asian and Middle East regions.

^[89] Ibid 11.

^[90] See UNFCCC climate change negotiations, above n 3, n 5.

^[91] COP Thirteenth Session, UN Doc FCCC/CP/2007/6/Add.1, above n 77.

^[92] Ibid 3 [1(b)].

^[93] See, eg, M Bom, India on Binding Emission Targets: ’No Way’ (2009) UNFCCC Danish Government Website <en.cop15.dk> at 4 August 2009.

^[94] Rob Fowler, An Initial Assessment of the Copenhagen Outcomes (2009) <http://www.teachingclimatelaw.org/2009/12/20/analysis-of-the-copenhagen-accord/> at 21 July 2010. The author, Professor Robert Fowler, currently at the School of Law, University of South Australia and previously the Dean of Adelaide University’s Law Faculty, is currently the Chair of the Governing Board, IUCN Academy of Environmental Law, University of Ottawa, Canada and attended the COP15 in that capacity. This assessment was prepared by the author on 19–20 December 2010 in Copenhagen, initially whilst the meetings of the COP and CMP continued into the mid-afternoon of Saturday 19 December.

^[95] Ibid.

^[96] This action was the source of much consternation as evidenced by the responses from various sources. See, eg, Morten Anderson, The World Reflects on Copenhagen Process (2009) Official Website of Denmark <www.denmark.dk/en/menu/Climate-Energy/COP15-Copenhagen-2009/Selected-COP15-news/The-world-reflects-on-Copenhagen-process.htm> at 20 December 2009.

^[97] The EU for instance were disappointed by the process and outcome, but nevertheless supported the document in principle. See, eg, European Commission, Copenhagen Climate Summit Fails to Meet EU Goals (2010) European Commission <http://ec.europa.eu/news/environment/091221_en.htm> at 21 December 2009.

^[98] See BBC News, Copenhagen Deal Reaction in Quotes (2009) <news.bbc.co.uk/2/hi/science/nature/8421910.stm> at 21 July 2010, where this statement is attributed to Ian Fry, Tuvalu’s Lead Negotiator.

^[99] See, eg, European Commission, above n 97.

^[100] ‘Decision 2/CP.15’ in COP Fifteenth Session, UN Doc FCCC/CP/2009/11/Add.1, 4–9.

^[101] ‘Decision 1/CP.15’ in ibid 3 [1]–[2].

^[102] ‘Decision 1/CMP.5’ in UNFCCC, Report of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol on its Fifth Session, Held in Copenhagen from 7 to 19 December 2009: Part Two, UN Doc FCCC/KP/CMP/2009/21/Add.1 (2010) 3 (‘CMP Fifth Session’).

^[103] ‘Decision 4/CP.15’ in COP Fifteenth Session, UN Doc FCCC/CP/2009/11/Add.1, 11 [1].

^[104] ‘Decision 2/CMP.5’ in CMP Fifth Session, UN Doc FCCC/KP/CMP/2009/21/Add.1, 4–11.

^[105] ‘Decision 5/CP.15’ in COP Fifteenth Session, UN Doc FCCC/CP/2009/11/Add.1, 13–16.

^[106] ‘Decision 3/CMP.5’ in CMP Fifth Session, UN Doc FCCC/KP/CMP/2009/21/Add.1, 12–15.

^[107] ‘Decision 8/CP.15’ in COP Fifteenth Session, UN Doc FCCC/CP/2009/11/Add.1, 22.

^[108] ‘Decision 7/CMP.5’ in CMP Fifth Session, UN Doc FCCC/KP/CMP/2009/21/Add.1, 21.

^[109] See, eg, Fowler, above n 94, ff 3, where the author notes that this observation is purely ‘hearsay’, and based on consultations by the author with observers who were close to the negotiations. However, subsequent reports have suggested that this is in fact what happened. See, eg, Sally Sara, India, China Cooperated to Torpedo Climate Deal (2009) ABC News (Online) <www.abc.net.au/news/stories/2009/12/23/2779003.htm> at 21 July 2010; AFP, Britain Blames China for Copenhagen ‘Farce’ (2009) ABC News (Online) <www.abc.net.au/news/stories/2009/12/22/2778031.htm> at 21 July 2010; Richard Black, Why Did Copenhagen Fail to Deliver a Climate Deal? (2009) BBC News (Online) <news.bbc.co.uk/2/hi/science/nature/8426835.stm> at 21 July 2010. For a detailed link to the responses of global media to the Copenhagen meeting and outcomes, see World Media Reacts to Climate Deal (2009) BBC News (Online) <http://news.bbc.co.uk/2/hi/science/nature/8422384.stm> at 21 July 2010.

^[110] International Union for Conservation of Nature, ‘Copenhagen Climate Summit: Copenhagen Accord a Step in Right Direction, but Insufficient’ (Press Release, 19 December 2009) <iucn.org/unfccc/events/copenhagen/resources/news/?4417/Copenhagen-Climate-Summit-Copenhagen-Accord-a-step-in-right-direction-but-insufficient> at 21 July 2010.

^[111] ‘Decision 2/CP.15’ in COP Fifteenth Session, UN Doc FCCC/CP/2009/11/Add.1, 6 [4].

^[112] Ibid 6–7 [8].

^[113] Ibid 5–6 [1]–[2].

^[114] See discussion by International Union for Conservation of Nature, above n 110.

^[115] ‘Decision 2/CP.15’ in COP Fifteenth Session, UN Doc FCCC/CP/2009/11/Add.1, 7 [12].

^[116] Fowler, above n 94, 3.

^[117] ‘Decision 1/CP.13’ in COP Thirteenth Session, UN Doc FCCC/CP/2007/6/Add.1, 3–6.

^[118] Ibid.

^[119] ‘Decision 2/CP.15’ in COP Fifteenth Session, UN Doc FCCC/CP/2009/11/Add.1, 6–7 [8].

^[120] Ibid.

^[121] Ibid.

^[122] Ibid 6 [5]. Implementation of national mitigation action is voluntary on the part of least developed countries and small island developing states.

^[123] Ibid.

^[124] Ibid.

^[125] Decision 5/CP.15’ in COP Fifteenth Session, UN Doc FCCC/CP/2009/11/Add.1, 13–16.

^[126] Ibid 15–16, Annex.

^[127] This issue was a source of debate between State Parties. See, eg, Fowler, above n 94.

^[128] Decision 2/CP.15’ in COP Fifteenth Session, UN Doc FCCC/CP/2009/11/Add.1, 7 [9].

^[129] Ibid 7 [11].

^[130] Ibid 7 [10].

^[131] Ibid.

^[132] Fowler, above n 94, 3.

^[133] Ibid.

^[134] According to the UN, nine states have already formally acknowledged their acceptance of the Copenhagen Accord, namely Australia, Canada, France, Ghana, Serbia, Papua New Guinea, Singapore, and Turkey, and the Maldives. See Alex Morales, Copenhagen Climate Accord Now Accepted By Nine Nations, UN Says (2010) Bloomberg and UNFCCC, Press/News (2010) <unfccc.int/press/news_room/items/2768.php> at 22 July 2010.

^[135] Fowler, above n 94, 6. See also the US Climate Action Network <http://www.usclimatenetwork.org/policy/copenhagen-accord-commitments#Note1?> at 22 July 2010.

^[136] Decision 2/CP.15’ in COP Fifteenth Session, UN Doc FCCC/CP/2009/11/Add.1, 3; ‘Decision 1/CMP.5’ in CMP Fifth Session, UN Doc FCCC/KP/CMP/2009/21/Add.1, 3.

^[137] There is a tangential reference to the existing Kyoto Protocol emissions reductions in para 4 of the Accord: ‘Decision 2/CP.15’ in COP Fifteenth Session, UN Doc FCCC/CP/2009/11/Add.1, which refers to the subsequent undertakings of Annex I parties (economy-wide emissions targets for 2020 to be set out in Appendix 1), which ‘will thereby further strengthen the emissions reductions initiated by the Kyoto Protocol’.

^[138] Garnaut, above n 31.

^[139] Alan Dupont and Graeme Pearman, ‘Heating Up the Planet: Climate Change and Security 2006’ (Paper No 12, Lowy Institute, 2006) <http://lowyinstitute.richmedia-server.com/docs/AD_GP_ClimateChange.pdf> .

^[140] Ibid viii.

^[141] National Greenhouse and Energy Reporting Act 2007 (Cth). See also Department of Climate Change, About the National Greenhouse and Energy Reporting Act (2009) Australian Government <http://www.climatechange.gov.au/en/government/initiatives/national-greenhouse-energy-reporting.aspx> . For further discussion see Rowena Cantley-Smith, ‘How Green is the NEM? The Environment and the National Electricity Market’, in Rowena Cantley-Smith and Diana Bowman (eds), GreenPower: An Environmental Audit of the NEM (2009) 29.

^[142] Garnaut Climate Change Review, Interim Report to the Commonwealth, State and Territory Governments of Australia: February 2008 (2008). See also Garnaut, above n 31.

^[143] See Australian Government, COAG Working Group on Climate Change and Water, Design Options for the Expanded National Renewable Energy Target Scheme (2008).

^[144] Australian Government, Carbon Pollution Reduction Scheme: Green Paper — July 2008 (2008) (‘Green Paper’).

^[145] Australian Government, Carbon Pollution Reduction Scheme: White Paper — December 2008 (2008) (‘White Paper’).

^[146] The six bills went before the federal parliament in 2009: Carbon Pollution Reduction Scheme Bill 2009; Carbon Pollution Reduction Scheme (Consequential Amendments) Bill 2009; Australian Climate Change Regulatory Authority Bill 2009; Carbon Pollution Reduction Scheme (Charges — General) Bill 2009; Carbon Pollution Reduction Scheme (Charges — Customs) Bill 2009; Carbon Pollution Reduction Scheme (Charges — Excise) Bill 2009.

^[147] Australian Government, Green Paper, above n 144, iii.

^[148] Ibid v.

^[149] Australian Government, White Paper, above n 145, xxiii.

^[150] Australian Government, Australia’s Low Pollution Future: The Economics of Climate Change Mitigation — Summary (2008).

^[151] Ibid ix.

^[152] The Kyoto Protocol to the United Nations Framework Convention on Climate Change (1992) was ratified by the Australian Government on 3 December 2007. The Kyoto Protocol is as international instrument that became legally binding, in the international law sense, on 16 February 2005. It has been designed to strengthen and develop the international obligations set down in the 1992 United Nations Framework Convention on Climate Change and focuses on reducing global greenhouse gas emissions. For further details see: UNFCCC <unfccc.int/kyoto_protocol/items/2830.php> at 23 July 2010.

^[153] Australian Government, White Paper, above n 145, xx.

^[154] See above n 134.

^[155] Yvo de Boer, ‘UNFCCC Press Briefing on the Outcome of Copenhagen and the Way Forward in 2010’ (Press Release, 20 January 2010).