CCLR 4/2013

You can order any of the articles listed below for €35,00; case notes are available for each €20,00; all current developments for together €20,00, and features (book reviews, conference reports or "in the market") for €8,00. EU Member States: VAT will be added if applicable.

Issue 4/2013

Table of Contents

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Michael Mehling and Joëlle de Sépibus
Editorial: Process, Principles and Architecture of the Post-2020 Climate Regime
Carbon and Climate Law Review 4/2013: pp. 229-230
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In late 2011, the international community agreed to launch a negotiation process "to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties." This mandate, known as the Durban Platform for Enhanced Action, defines 2015 as the deadline for adoption of this new agreement, allowing it to enter into force by 2020.

Kentaro Tamura, Takeshi Kuramochi, and Jusen Asuka
A Process for Making Nationally-determined Mitigation Contributions More Ambitious
Carbon and Climate Law Review 4/2013: pp. 231-241 [Article]
[Click here to show Abstract]

Based upon the lessons from the current initiatives under the climate regime as well as relevant literature, this paper discuss specific steps and time frames that aim to add ex-ante clarity to nationally determined contributions to climate change mitigation and enhance their levels of ambition. The process proposed has three distinctive features: 1) A consortium of research institutes is established with a view to providing benchmarks to which Parties can refer to when proposing their initial contributions, and against which each Party’s relative contribution to the 2°C target is assessed; 2) To enhance ex-ante clarity and comparability of Parties’ contributions, the consortium also provides a common and clear template for information on mitigation contributions that Parties will complete ex-ante; 3) A limited number of Parties—for example, the G20 member countries—are requested to complete the common template and go through an international consultation process with a view to amending contributions to meet the required aggregate contribution for the 2°C goal.

Antto Vihma and Kati Kulovesi
Can Attention to the Process Improve the Efficiency of the UNFCCC Negotiations?
Carbon and Climate Law Review 4/2013: pp. 242-251 [Article]
[Click here to show Abstract]

While many are hopeful that the mandate under the Durban Platform for Enhanced Action to negotiate a new legal instrument applicable to all Parties from 2020 marks a new era in international climate policy, the beginning of the journey has not been an easy one. Indeed, with political stakes higher than before, it seems that the UN climate change negotiations will face considerable procedural hurdles also in the future. The UNFCCC regime has also gone through significant evolution on the institutional front in recent years. Notably, several limited membership bodies have been created, arguably increasing continuity in the process by ensuring more frequent and detailed consideration of issues such as adaptation, finance and technology. In light of these developments, this paper focuses on the efficiency of the UNFCCC negotiations, discussing proposals to streamline the negotiating process under the Conference of the Parties and its subsidiary bodies, the role of the Presidency and ministerial involvement, and the potential of the Limited Membership Bodies to expedite work under the UNFCCC.

Birgit Lode and Milan Dehnen
The Role of Domestic Law in “Agreed Outcome with Legal Force”
Carbon and Climate Law Review 4/2013: pp. 252-259 [Article]
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Assessing the Indian Interpretation of a Possible Durban Platform Outcome

With the Warsaw conference just behind us, and less than two years left for the drafting of an agreement intended to follow in the footsteps of the Kyoto Protocol, this article addresses the question how such a successor might look like, i.e., which legal form it might actually take, adhering to the requirements set out in the decision the parties to the UNFCCC adopted in Durban in 2011, establishing the so called Durban Platform. It focuses on the Indian interpretation of the Durban Platform, submitted in the aftermath of the 17th Conference of the Parties in Durban, which understands the notion “agreed outcome with legal force” as one including domestic law. Building on an overview of the relation between national and international law under the international Climate Change Regime, different options are systematically being developed and the possibility of a concrete outcome building on domestic law will be presented and evaluated.

Rowena Maguire
The Role of Common but Differentiated Responsibility in the 2020 Climate Regime
Carbon and Climate Law Review 4/2013: pp. 260-269 [Article]
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Evolving a New Understanding of Differential Commitments

The principle of common but differentiated responsibility (CBDR) will play a role in the 2020 Climate Regime. This Article starts by examining differential treatment within the international legal order, finding that it is ethically and practically difficult to implement an international climate instrument based on formal equality. There is evidence of state parties accepting differential responsibilities in a number of areas within the international legal order and the embedding of CBDR in the United Nations Framework Convention on Climate Change (UNFCCC),1 means that that differential commitments will lie at the heart of the 2020 climate regime. The UNFCCC applies the implementation method of differentiation, while the Kyoto Protocol2 applies both the obligation and implementation method of differentiation. It is suggested that the implementation model will be the differentiation model retained in the 2020 climate agreement. The Parties’ submissions under the Durban Platform are considered in order to gain an understanding of their positions on CBDR. While there are areas of contention including the role of principles in shaping obligations and the ongoing legal status of Annex I and Non-Annex I distinction, there is broad consensus among the parties in favour of differentiation by implementation with developed and major economies undertaking Quantified Emission Limitation and Reduction Objectives (economy wide targets) and developing countries that are not major economies undertaking sectoral targets.

Wolfgang Sterk and Lukas Hermwille
Does the Climate Regime Need New Types of Mitigation Commitments?
Carbon and Climate Law Review 4/2013: pp. 270-282 [Article]
[Click here to show Abstract]

Apart from the much-debated question of what legal form the 2015 climate agreement is supposed to have, another core issue is the substantive content of countries’ commitments. While the climate regime has so far mostly been based on emission targets, literature has identified a broad range of other possible types of mitigation commitments, such as technology targets, emission price commitments, or commitments to specific policies and measures (PAMs). The nationally appropriate mitigation actions (NAMAs) submitted by developing countries under the Cancún Agreements also show a broad range of different forms of participation. This article surveys the possible commitment types that have so far been discussed in literature and in the UNFCCC negotiations and assesses their respective advantages and disadvantages against a set of criteria: environmental effectiveness, cost effectiveness, distributional aspects and institutional feasibility. The article finds that no commitment option provides a silver bullet. All options have several advantages but also disadvantages. The environmentally most effective way forward may lie in pursuing a multi-dimensional approach, combining emission targets with other commitment types to compensate for the drawbacks of the emission-based approach. However, such an approach would also increase complexity, both in terms of the negotiations and in terms of implementation and administration.

Magali Dreyfus
Are Cities a Relevant Scale of Action to Tackle Climate Change?
Carbon and Climate Law Review 4/2013: pp. 283-292 [Article]
[Click here to show Abstract]

Some Reflections to Inform the Debate on the Post-2020 Regime

Currently the international climate regime does not acknowledge the role of cities in tackling climate change. Yet their case is relevant for several reasons. They are vulnerable settlements and important emitters at the same time. Also the resources they concentrate allow them to take action and find innovative solutions. Although international law does not consider local governments, there are, at the city level, opportunities to seize in order to help national governments meeting their mitigation targets and adaptation objectives. In fact, thanks to important advocacy activities, city governments have slowly gained some recognition and the context now seems favorable to formally involve them in the climate regime. The 2020 regime would therefore benefit from a clear mention of how local governments can be involved in the whole UNFCCC process so that common mechanisms, which ease implementation at the local level, are set up. To do so, it is important to make sure that local governments are participants in the definition of the regime.

Thomas Spencer and Elizabeth Hipwell
Coordinating, Mandating, Monitoring
Carbon and Climate Law Review 4/2013: pp. 293-305 [Article]
[Click here to show Abstract]

What Can the Post-2015 Climate Regime Learn From Global Financial Governance?

After the 2008 financial crisis, governments and international organizations have engaged in an intensive reform of global financial sector governance. This process was one of the most significant recent reforms of global governance. There are analogies and differences between the challenges of financial sector governance and climate change. Nonetheless, the analogies are sufficient to make a comparison worthwhile. Both issues involve large-scale, systemic externalities; incentives for states and firms to free-ride; distributional consequences and deep implications for national policies. This paper uses the example of financial sector governance to inform the discussion on the post-2020 climate regime, in particular on the institutional needs of the climate regime, the interplay between venues of climate cooperation and the normative value of soft law.

Anne-Sophie Tabau, Leonardo Massai
Current Developments in Carbon & Climate Law
Carbon and Climate Law Review 4/2013: pp. 306-309
[Click here to show Abstract]

International, Anne-Sophie Tabau - European Union, Leonardo Massai -

compiled by Harro van Asselt
Book Reviews & New Publications
Carbon and Climate Law Review 4/2013: pp. 310-317 [Feature]
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The WTO and the Environment: Development of Competence beyond Trade, by James K.R. Watson London: Routledge, 2013. 236 pp., £80.00, hardback.

The Governance of Climate Change. Science, Economics, Politics and Ethics, edited by David Held, Angus Hervey and Marika Theros Cambridge, UK Polity Press, 2011. 256 pp., £55.00, paperback.

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