A legal analysis of South Africa's
international climate change mitigation
obligations in the renewable energy sector.
MK LEGORA
26864215
Mini-Dissertation submitted in fulfilment of the requirements for
the degree Master of Law in Environmental Law and
Governance
at the Potchefstroom Campus of the North-West University
Supervisor/Promoter:
Dr M Barnard
ACKNOWLEDGEMENTS
Firstly, I would like to thank the Almighty, who has guided me in my studies and who has never left nor forsaken me. Through His blessings I reached for the extraordinary. I would also like to thank my study leader Dr. Michelle Barnard who has been incredibly helpful and inspirational in this journey. Her advice allowed me to reach my fullest potential and for that I am grateful.
To my loving parents Melford and Mable Legora who have been the best support system I could have ever asked for.
To my siblings, you have been my rocks and I am so appreciative of all the love and laughter you shared with me.
Lastly, to my friends for being there for me, my sunshine in the midst of darkness. .You all helped keeping me level headed.
ABSTRACT
Climate change has come across as an overriding environmental concern internationally in the 21st century. A variety of anthropogenic activities and wide-scale use of fossil fuels have exponentially increased greenhouse gas emissions into the atmosphere which are responsible for causing climate change. There is substantial certainty that the energy sector currently contributes to the majority of GHG emissions into the atmosphere, particularly from burning coal for electricity generation. This is also the case in South Africa, with the energy sector contributing a great majority of emission into the atmosphere. It has been strongly suggested by the world's scientific community that there is a need for a transition to energy efficiency and to renewable energy to mitigate climate change.
For the greater part of the 21st century the international community has been taking action through international treaties in an effort to mitigate climate change. In terms of the international climate change regime all countries are to undertake specific obligations which are aimed at mitigating climate change. This mini dissertation analyses the extent to which South African renewable energy law and policy comply with the international climate change mitigation obligation in terms of the United Nations Framework Convention on Climate Change regime.
Key words:
OPSOMMING
Klimaatsverandering het gedurende die 21ste eeu bekend geword as een van die grootste bedreigings tot die omgewing. Die oorsake van klimaatsverandering is uiteenlopend, maar menslike aktiwiteite en dan veral fossielbrandstofgedrewe energie opwekking dra by tot verhoogde kweekhuisgasvrystellings.. Wêreldwye statistieke toon 'n duidelike verband tussen verhoogde kweekhuisgasvrystellings en die verbranding van steenkool tydens elektrisiteitsopwekking. Dieselfde is ook veral waar van die Suid-Afrikaanse energiesektor. Die oplossing vir hierdie situasie lê in energie effektiwiteit en die oorskakeling na 'n meer hernubare energie sektor om sodoende klimaatsverandering te temper.
Die internasionale gemeenskap se aksies met betrekking to die tempering van klimaatsverandering word deur bepaalde internasionale verdrae gereguleer. In terme van hierdie verdrae moet lidstate verskillende stappe neem om tempering teweeg te bring. Hierdie skripsie ondersoek die mate waartoe die Suid-Afrikaanse hernubare energie regsraamwerk voldoen aan die internasionale temperingsdoelwitte van die United Nations Framework Convention on Climate Change regsraamwerk.
Sleutelwoorde:
TABLE OF CONTENTS
ACKNOWLEDGEMENTS………I ABSTRACT ... II OPSOMMING ... III LIST OF ABBREVIATIONS ... VII
1 Introduction ... 1
1.1 Bird’s-eye view of international response to climate change ... 2
1.2 Differentiation in climate change regime ... 4
1.3 Climate change mitigation ... 6
1.4 Overview of this mini-dissertation ... 6
2 International Climate Change Law ... 8
2.1 Introduction ... 8
2.2 Brief history of climate negotiations ... 8
2.3 The UNFCCC ... 10
2.3.1 UNFCCC objective ... 11
2.3.2 The UNFCCC principles ... 12
2.3.3 Mitigation Commitments under the UNFCCC ... 16
2.3.4 Conference of the Parties (COPs) ... 18
2.4 The Kyoto Protocol ... 22
2.4.2 Flexible Mechanisms under Kyoto Protocol ... 25
2.5 The Paris Agreement 2015 ... 26
2.5.1 Paris Agreement and Climate Change mitigation ... 27
2.6 Final remarks ... 28
3 The South African climate change legal framework ... 30
3.1 Introduction ... 30
3.2 South African Government stances on climate change ... 31
3.3 National Communication under the UNFCCC ... 34
3.4 The South African Legal and Environmental Framework ... 36
3.4.1 The Constitution of the Republic of South Africa 1996. ... 36
3.4.2 National Environmental Management Act 107 of 1998 (NEMA) ... 38
3.4.3 National Environmental Management: Air Quality Act ... 41
3.5 South Africa climate change Policy. ... 44
3.5.1 National climate change response white paper 2011 ( 2011 white paper) ... 44
3.6 Final remarks ... 48
4 The South African renewable energy legal framework ... 50
4.1 Introduction ... 50
4.2 Energy-related policy documents ... 52
4.2.1 The White Paper on Energy Policy of the Republic of South Africa 1998... 52
4.2.2 The White Paper on Renewable Energy Policy 2003 ... 54
4.2.3 Integrated Energy Plan 2003 ... 58
4.3 Energy-related legislation ... 59
4.3.1 Electricity Regulation Act 4 of 2006 ... 59
4.3.2 Integrated Resource Plan for Electricity 2010-2030 ... 65
4.3.3 National Energy Act 34 of 2008 ... 66
4.4 Energy policy and legislation on climate change mitigation ... 68
4.5 Final remarks ... 68
5 Conclusion and recommendations ... 70
5.1 Conclusion ... 70
LIST OF ABBREVIATIONS
AR4 Fourth Assessment Report °C Degree Celsius
Am J Intl Law American Journal of International law BAU Business as Usual
BEE Black Economic Empowerment CER Certified Emission Reductions CDM Clean Development Mechanism
CBDR-RC Common but Differentiated Responsibilities and Respective Capabilities
CH4 Methane
CILJSA Comparative and International Law Journal of Southern Africa CO2 Carbon dioxide
COP Conference of the Parties
DEA Department of Environmental Affairs DNA Designated National Authority GHG Greenhouse gas
GW Gigawatt
IEP Integrated Energy Plan 2003
IPCC Intergovernmental Panel on Climate Change IPP Independent Power Producers
IET International Emissions Trading JI Joint Implementation
MW Megawatt
NAEIS National Atmospheric Emission Inventory System
NAMA Nationally Appropriate Mitigation Actions NDC Nationally Determined Contribution
NEMA National Environmental Management Act 107 of 1998
NEM:AQA National Environmental Management: Air Quality Act 39 of 2004 NERSA National Energy Regulator of South Africa
NFAQM National Framework for Air Quality Management in the Republic of South Africa
NO2 Nitrous oxide
REFIT Renewable Energy Feed-in Tariffs
REIPPP Renewable Energy Independent Power Producers Programme SEMAs Specific Environmental Management Acts
UN United Nations
UNCED United Nations Conference on Environmental and Development UNFCC United Nations Framework on Climate Change
LIST OF TABLES
Table 1: Allocation of Renewable Energy Capacity to be procured through
IPP for the years 2017-2020 ... 62 Table 2: Allocation of Renewable Energy Capacity to be procured through
1 Introduction
Climate change1 is considered as one, if not, the overriding global environmental challenge of the 21st century.2 While potential causes of climate change are diverse, including natural and anthropogenic (human-induced) processes,3 scientific evidence puts it beyond a reasonable doubt that human activities have significantly increased the concentration of greenhouse gases (hereafter GHG).4 These GHG emitting anthropogenic activities include, but are not restricted to energy generation and consumption,5 transportation, mining and deforestation.
Climate change is foreseen to have a series of detrimental effects on inter alia agriculture,6food security,7 sea level rise, human health,8 extreme weather9 and
1 Climate change is defined in Article 1 of the United Nation Framework Convention on
Climate Change 1992 (the UNFCCC) 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".
2 van der Gaast and Begg Challenges and Solutions for Climate Change 1; Pedersen 2010
Journal of Human Rights and Environment 236.
3 There are natural processes on earth that emit GHGs into the atmosphere. These naturally
emitted GHGs protect this planet from harmful solar radiation and stabilise the surface temperature and climate.
4 Article 1 of the UNFCCC defines greenhouse gases (GHG) as "gaseous constituents of the
atmosphere, both natural and anthropogenic, that absorb and re-emit infrared radiation". Annex A of the Kyoto Protocol list 6 GHGs namely; Carbon dioxide (C02), Methane (CH4),
Nitrous oxide (N20), Hydrofluorocarbons (HFCs) Perfluorocarbons (PFCs) and Sulphur
hexafluoride (SF6).
5 Globally and nationally, the energy sector accounts for the majority of the GHGs emissions
into the atmosphere. This is as a result of the significant reliance on fossil-fuels such as coal and oil for energy generation; see kidd Environmental Law 308; Priddle R 2015 https://www.iea.org/publications/freepublications/publication/WEO2015SpecialReportonEne rgyandClimateChange.pdf 20.
6 There are a number of ways in which climate change can have a negative effect on
agriculture, including inter alia through changes in rainfall patterns, nutrient levels, average temperature, CO2 concentrations, soil moisture, changes in livestock and crop production
and changes in agricultural diseases and pest. See National Climate Assessment date unknown http://nca2014.globalchange.gov/report/sectors/agriculture; Department of
Agriculture 2007
http://www.nda.agric.za/doaDev/sideMenu/others/CCDM/docs/climateChangeAndAgricSect orInSA.pdf 1,2; see also Maponya and Mpandeli 2012 Journal of Agricultural Science
48,49,58.
7 Burke and Lobell Climate Change and Food Security: Adapting Agriculture to a
Warmer World 18-26.
8 McMichael "Climate Change and Global Health" 15-17.
sustainable development.10 The cross-cutting nature of climate change to affect not only the environment but also the social and economic interest of the people makes it the greatest challenge facing national governments and the international community.
While climate change threatens the interest of the current and future generations in both Annexed and non-Annexed countries, "in general developed countries are better equipped to resist climate variations than are developing countries".11 Furthermore, the degree of vulnerability of non-Annexed countries also varies inter se. In particular, countries that are close to the sea are vulnerable to the rise in sea levels and agriculture in some countries may be significantly affected.12 Thus, the challenge of dealing with climate change is balancing climate change adaptation on one hand and climate change mitigation on the other.13 The latter, which is the focus of this study, refers to "an anthropogenic intervention to reduce or enhance sinks of greenhouse gas".14
1.1 Bird’s-eye view of international response to climate change
The manner in which the international community responded to climate change has been influenced by "the general recognition of the urgency of the problem and the
10 Ravindranath and Jathaye Climate Change and Developing Countries 8; Steffen "The
Anthropocene: A Planet Under Pressure" 7.
11 Magalhaes" Adapting to Climate Variations in Developing Countries"44. According to
magalhaes 45:
"In developing countries overall social, environmental, and economic vulnerability enhances the effects of droughts and other climatic events. Overpopulation (relative to current productivity, income, and natural resources), poverty, and land degradation translate into a poor capacity to face any kind of crisis. Poor people have no insurance against loss of income. Weak economic structures mean difficulties in maintaining jobs during an economic failure. Degraded marginal lands become totally unproductive when precipitation decreases. As a result, these regions have difficulty in facing climatic crises, although such crises are recurrent. Any extreme climatic event can become a social catastrophe when combined with the social-political characteristics of the region".
12 See Louka International environmental law: fairness effectiveness and world order 3,5 14. 13 Lakner M, Chen W and Suzuki T "introduction to Climate Change Mitigation" 6.
14 Intergovernmental Panel on Climate Change (IPCC)
need for immediate action".15 The international response to climate change has been described as "complex, intense and delicate" which reflects the "approach of the global regulatory system on environmental protection".16
The international response to climate change came in the form of international treaty namely; the United Nations Framework Convention on Climate Change (hereafter UNFCCC) which was adopted at the 1992 United Nations Conference on the Environment and Development in Rio de Jeneiro, Brazil.17 The main objective of the UNFCCC pertains to climate change mitigation and more specifically "to stabilise concentrations of the GHG in the atmosphere".18 The UNFCCC commits the parties to take necessary measures to mitigate climate change by reducing the emissions of GHGs into the atmosphere and protecting natural resources. The Annexed countries agreed to assist non-Annexed countries to achieve their commitments under the UNFCCC regime. South Africa is a party to the UNFCCC and it falls under the non–Annexed countries category.
The parties to the UNFCCC adopted Kyoto Protocol in 1997, which operate as a tool to promote and give effect to the UNFCCC objectives and to ensure that the mitigation of GHGs emission of the parties is within the assigned amounts.19 It is important to mention at the outset that the operation of the Kyoto Protocol will come to an end in 2020. The Kyoto Protocol established the flexible mechanism which enables countries, particularly Annexed countries, to meet their commitments and mitigate climate change in a more cost effective way namely; International Emissions Trade (hereafter IET),20 Joint Implementation (hereafter JI),21 and the Clean Development Mechanism (hereafter
15 Sands and Millar 2011
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1566?rskey=VopdbK&result=7&prd=EPIL.
16 Sands and Millar 2011
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1566?rskey=VopdbK&result=7&prd=EPIL.
17 The UNFCCC was adopted along with other environmental treaties namely; the Convention
on Biological and Diversity 1992, Rio Declaration on Environment and Development 1992.
18 See Article 3 of the UNFCCC. 19 Article 3 of Kyoto Protocol.
20 See Article 17 of the Kyoto Protocol. 21 See Article 6 of the Kyoto Protocol.
CDM).22 The latte stands out for its ability to allow non-Annexed I countries such as South Africa to participate.
In 12 December 2015 at COP 21 to the UNFCCC held in Paris, the Parties adopted the Paris Agreement which, at the time writing, was open for ratification but not yet in force.23 The Paris Agreement is applauded as "an historic agreement to combat climate change and unleash actions and investment towards a low carbon, resilient and sustainable future".24 Although the Paris Agreement on paper is ambitious and entrenches all the necessary tools to combat climate change and thus aid the transition to a low carbon future, it remains to be seen whether its implementation through "an enhanced transparency framework for action and support" will indeed become a turning point in international climate change governance.25
1.2 Differentiation in climate change regime
Addressing climate change internationally has been, and still is, an enormous challenge given the disparities in states' capabilities and capacities to combat it. These disparities are acknowledged in both the UNFCCC and the Kyoto Protocol which are both premised on the principle of common but differentiated responsibilities and respective capabilities (hereafter CBDR-RC) among other principles. The CBDR-RC principle, in terms of the UNFCCC regime, imposes different mitigation obligations between Annexed and non-Annexed I countries pertaining to the reduction of GHG emissions. In terms of this differentiation, the mitigation obligations vary and are not evenly distributed. In particular, Annexed countries have the obligation to reduce their overall emissions of GHGs "by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012".26 Unlike the Annexed I countries, non-Annexed countries have not committed to the quantified emission limitations and reduction commitments as contemplated in Article 3 of the Protocol.
22 See Article 12 of the Kyoto Protocol.
23 It opened for ratification on 22 April 2016 until 21 April 2017. It is important to note that
the Paris Agreement will be effective from 2020 onwards.
24 UNFCCC date unknown http://newsroom.unfccc.int/unfccc-newsroom/finale-cop21/. 25 See Article 13 of the Paris Agreement.
South Africa is a party to both UNFCCC and its Kyoto Protocol and therefore by necessary implication; it is bound by the provisions of these instruments (international climate change regime) and it has to uphold the obligations imposed by these instruments. However, by virtue of it being a non-Annex I country, South Africa is not required to abide by the stringent commitments imposed on the Annexed I countries. Notwithstanding its classification as a non-Annexed I country, it has some obligations that it needs to adhere to. For example, the non-Annexed I countries are persuaded to mitigate climate change by addressing human-induced emissions by sources and removals by sinks of GHGs,27 "take climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies and actions"28 and promote and cooperate in climate change related research in general.29 Article 10 (b) of the Kyoto Protocol, furthermore, provides that all parties shall "formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change".
It is important to mention at the outset that the Paris Agreement retained the CBDR-RC principle, albeit with new implications on the parties. As Barnard30 opinioned, the definition of the CBDR-RC principle in the Paris Agreement differs from the one in the Kyoto protocol in that the latter refers to Annexed and non-Annexed countries while the former refers to developing and developed countries.31 Unlike the Kyoto Protocol which placed climate change mitigation responsibilities on Annex I countries, she reasoned, the Paris agreement explicitly places the duty on both developing and developed countries to take measures to mitigate climate change.32
27 Article 4.1(b) of the UNFCCC. 28 Article 4.1(f) of the UNFCCC. 29 Article 4.1(g) of the UNFCCC.
30 Barnard Climate change mitigation in the AU - differentiated responsibilities in the
progressive realisation of human rights 3(Paper on file with the Author).
31 Barnard Climate change mitigation in the AU - differentiated responsibilities in the
progressive realisation of human rights 3(Paper on file with the Author).
32 Barnard Climate change mitigation in the AU - differentiated responsibilities in the
1.3 Climate change mitigation
In 2007 the International Panel on Climate Change (hereafter IPCC) identified inter alia the energy and transport sector and as the major GHGs emitters between 1970 and 2004.33 In regards to GHG mitigation, the IPCC noted that:
the promotion of energy efficiency improvements and fuel switching are among the most frequently applied policy measures that result in mitigation of GHG emissions. Although they may not necessarily be targeted at GHG emission mitigation, such policy measures do have a strong impact in lowering the emission level from where it would be otherwise. 34
COP1735 furthermore encourages non-Annexed I countries to "develop low emission development strategies" which will, arguably, enable a transition to a low carbon economy. One of the prominent climate change mitigation measures, recognised globally, is energy sector reform in the guise of increased generation and consumption of renewable energy.36 This should not be taken to imply that renewable energy is the only viable measure for climate change mitigation; rather, it should be deployed in conjunction with other measures in other sectors of the economy such transport, agriculture, industrial and mining sector.
Currently in the South African legal system there is no framework legislation that deals with climate change or renewable energy as a topic. Both climate change and renewable energy are addressed mainly at policy level. But there is a variety of national legislation that tangentially addresses climate change and renewable energy to a certain extent.
1.4 Overview of this mini-dissertation
Against this background, this study questions the extent to which South African renewable energy law and policy comply with international climate change mitigation
33 Intergovernmental Panel on Climate Change (IPCC) 2007
https://www.ipcc.ch/publications_and_data/ar4/wg3/en/ch1s1-3.html.
34 Intergovernmental Panel on Climate Change (IPCC) 2007
https://www.ipcc.ch/publications_and_data/ar4/wg3/en/ch1s1-3.html.
35 UNFCCC Decision 2/CP.17 " Outcome of the work of the Ad Hoc Working Group on
Long-term Cooperative Action under the Convention" para 38.
36 Intergovernmental Panel on Climate Change (IPCC) 2007
obligation in terms of the UNFCCC regime. In answering this question, section 2 of this study will analyse the body of legal instruments comprising the international law on climate change in order to ascertain the mandate for climate change mitigation and role of renewable energy in climate change mitigation. Moreover, section 3 of this study, will discuss the relevant climate change laws and the regulations including the major climate change policies in South Africa and summary of the position of our government on climate change. The author will , in section 3 of this study, provide an overview of the legislation and policy comprising the South African legal framework on renewable energy with the aim to ascertain the extent to which, if any, framework facilitates transition to low carbon economy and promote climate change mitigation via the renewable energy sector.
2 International Climate Change Law
2.1 Introduction
As mentioned in the preceding chapter, the body of legal instruments comprising the international law on climate change, will be analysed in order to ascertain the mandate for climate change mitigation and the role of renewable energy in climate change mitigation. In doing so, the provisions applicable to non-Annexed I countries in both the UNFCCC and the Kyoto Protocol will be especially relevant. Due to the focus of this study, the principle underpinning the international climate change regime, namely; the CBDR-RC principle will also be discussed to ascertain the extent to which it influences the international obligations on climate change mitigation. Moreover, the COP decisions that enhanced or elucidated the mitigation obligations for the parties will be identified and in a similar vein, the mitigation obligations for South Africa will be identified in this regard.
The main aim of this chapter is to identify a clear and specific mandate in international climate change regime for South Africa with regard to the role renewable energy in climate change mitigation.
2.2 Brief history of climate negotiations
Climate change has been the subject for international negotiations and discussions long before the adoption of UNFCCC and its Kyoto Protocol.37 The first international climate change conference was held by the World Meteorological Organisation (hereafter WMO) in 1979, where the primary focus was on the assessment of existing scientific knowledge and information of how the increase in concentrations of GHGs in the atmosphere could lead to increase in global temperatures.38 At the Conference, the parties presented the model scenarios based on the GHG emissions data, the
37 For a detailed history of climate change negotiations See Cohen and Waddell Climate
Change in the 21st Century 10-13.
38 See World Meteorological Organisation date unknown
http://www.wmo.int/pages/themes/climate/international_wcc.php; for a detailed history of climate change activities; see also Zillman 2009 https://www.wmo.int/pages/publications/bulletin_en/archive/58_3_en/documents/58_3_zill man_en.pdf 141- 149.
meteorological data and the figures of the corresponding development of GHG concentrations in the atmosphere.39 During the 1980s there was scepticism at a political level pertaining to the causes of climate change, especially human induced climate change, because at that time there was a general uncertainties and insufficient scientific evidence pertaining to the causes of climate change in general.40
However as scientific evidence became available,41 the focus shifted to human induced climate change. The international response to climate change has primarily focused on the development of a multilateral climate change regime that sought to achieve the stabilisation of GHGs concentration in the atmosphere and thereby avoiding climate change and its impacts.42 In 1990, the United Nations (hereafter UN) General Assembly established the Intergovernmental Negotiations Committee for a Framework Convention on Climate Change, whose mandate was to negotiate a convention that contains appropriate commitments during the then forthcoming UN Conference on Environmental and Development (hereafter UNCED) convened at Rio de Janeiro.
During the negotiations, the United States of America opposed the submissions by both the Association of Small Island States and the European Union who wanted the establishment of binding 'targets and timetables' which seeks to limit emissions of GHGs by Annexed countries.43 Despite a strong opposition from the United States of America, the other Annexed countries supported the establishment of binding 'targets and timetable' subject to a condition that it applied to Annexed countries only.44 In May 1992 the conundrum of negotiations between the parties reached its demise, and as a result, it culminated into the adoption of the UNFCCC. The UNFCCC entrenches nationally-binding commitments but falls short of binding GHG emission for the parties.
39 Van der Gaast and Begg Challenges and Solutions for Climate Change 3
40 Arts The Political Influence of Global NGOs: Case Studies on the Climate and Biodiversity
Conventions 102
41 See Cohen and Waddell Climate Change in the 21st Century 36.
42 Rosemary and Scott "Mapping the Impact of Climate Change on International Law" 4. 43 Bodansky "History of the Global Climate Change Regime" 33.
The UNFCCC opened for signature at UNCED in June 1992. But it came into force two years later in March 1994 and currently has 195 parties.45 The UNFCCC established the Conference of Parties (hereafter COP) as the decision-making authority.
South Africa ratified the UNFCCC in 1997 following the demise of apartheid government. South Africa under the UNFCCC is classified as a Non-Annexed 1 country. This means that it is vested with a "common but differentiated responsibility" to comply with the commitments applicable to all parties under the UNFCCC.
2.3 The UNFCCC
The UNFCCC provides an overall framework for the parties to negotiate specific international treaties called the protocols, which may set legally binding limits on GHG emissions.46 In 1997, the parties adopted the Kyoto Protocol which established legally binding obligations and elaborated on mitigation initiatives for Annexed countries. The UNFCCC also provides for annual decisions of the COPs that alter or affect the obligations of the parties.47 Every year the parties meet in COPs in an endeavour to achieve the objectives of the UNFCCC and to negotiate the potential solutions to Global Climate Change. In 2010, for example, the Cancun agreements (hereafter COP16) was adopted and it required that future global temperatures should be limited to below 2 degrees Celsius relative to pre-industrial levels.48
The UNFCCC entrenched an objective, principles and commitments for member states49 and establishes institutions that facilitate negotiations pertaining to the international
45 The UNFCCC membership is near-universal in character. See United Nations
http://unfccc.int/essential_background/convention/items/6036.php.
46 See generally Article 17 of the UNFCCC.
47 For a detailed functions and duties of the Conference of the Parties (COPs), see article 7 of
the UNFCCC.
48 UNFCCC Decision 1/CP.16 "The Cancun Agreements: Outcome of the work of the Ad Hoc
Working Group on Long term Cooperative Action under the Convention" (Cancun Agreements) http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf#page=2.
49 The UNFCCC divides member states into three broad groups namely; Annex 1, Annex II
and Non-annex parties. Annex 1 parties comprise the developed countries and economies in transition, Annex 2 parties comprise OECD members of Annex 1 excluding economies in transition countries and Non-Annex countries comprising of developing states, small island states, and least developed countries.
response to climate change. Additionally, the UNFCCC contains the preamble, which according to the Article 31.2 of Vienna Convention on the Law of Treaties, serves as "the context for the purpose of the interpretation of a treaty".50
2.3.1 UNFCCC objective
The ultimate objective of the UNFCCC is:
...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.51
In terms of Article 2 of the UNFCCC, this objective not only applies to the convention itself, but also to ―any related legal instrument‖ that the COP adopts, such as the Kyoto Protocol.52 Thus, there is only one objective for climate change regime, albeit implemented through a plethora of legal policies, measures and instruments.53
The UNFCCC provides an incentive for international cooperation on climate change mitigation.54 As far as the stabilisation of GHG concentration is concerned, it was averred early by the IPCC in its Second Assessment Report that to achieve immediate stabilisation, immediate reduction of between 50%-70% of carbon dioxide (CO2) emission and additional reductions thereafter was required.55 Enhanced climate change mitigation is necessary but it requires international cooperation. This is because the UNFCCC preamble recognises that climate change is "a common concern for mankind".56 Thus, climate change not only requires policy-making at international level,
50 Article 31.2 of the Vienna Convention on the Law of Treaties. 51 Article 2 of the UNFCCC.
52 Article 2 of the UNFCCC.
53 Maguire "Foundations of International Climate Law: objectives, Principles and Methods" 85. 54 Note that UNFCCC also provides for adaption to the impacts of climate change.
55 IPCC (2005) Second assessment synthesis of scientific-technical information relevant to
interpreting article 2 of the UNFCCC.
but also concurrent policy-making at all levels of government.57 At international level, the UNFCCC contains mitigation commitments, albeit not legally-binding on member states and are subject certain constraints in the form of principles, which provides impetus to achieve the objective of the convention. While these principles guide the parties in the allocation and execution of climate change response obligations, they also play an important role during the climate change negotiations.
2.3.2 The UNFCCC principles
The UNFCCC explicitly refers to a number of principles which are increasingly recognised in international law, and particularly in international environmental law. The principles include, inter alia, the CBDR-RC principle,58 precautionary principle,59 the right, and obligation to promote sustainable development,60 and the principle of equity,61all of which give impetus to the climate change regime. These principles appear in both the Preamble and Article 3 of the UNFCCC. The principles embodied in Article 3 of the UNFCCC seek to provide guidance on the actions of the parties aimed at
57 Yamin and Depledge The International Climate Change Regime: a guide to rules,
institutions and procedures 3.
58 Article 3.1 of the UNFCCC.
59 Article 3.3 of the UNFCCC requires parties to 'take precautionary measures to anticipate,
prevent or minimise the causes of climate change.
60 Article 3.4 of the UNFCCC states that: "parties have a right to, and should, promote
sustainable development". Sustainable development has three dimensions namely; social, economic and environmental dimensions. The term sustainable development emerged in the international arena over two decades ago and gained recognition as one of the well-known international law principles. This principle was succinctly and crisply defined in see Report of the World Commission on Environment and Development: Our Common Future
1987 as "development which meets the needs of the present without compromising ability of future generations to meet their own needs"; This principle has been acknowledged as being part of international customary law by the International Court of Justice in the case of Gabčíkovo-Nagymaros Project (Hungary/Slovakia) 37 I.L.M. 162 (1998); See also Sands
Principles of International Environmental law 266. He identifies "5 recurring elements" comprising Sustainable development namely:-
"(1)the need to take into consideration the needs of present and future generations;(2) the acceptance, on environmental protection grounds, of limits placed upon the use and exploitation of natural resources;(3) the role of equitable principle in the allocation of rights and obligations;(4)the need to integrate all aspects of environmental development ;and (5) the need to interpret and apply the rules of international law in an integrated and sustainable manner‖.
successful implementation of the provisions and to achieve the ultimate objective of the Convention.62
Article 3 of the UNFCCC specify explicitly that 'the parties shall be guided' by these principles in order to achieve the objective of the UNFCCC. This implies that the parties ought to take into consideration these principles when implementing their commitments under the climate change regime63 in order to achieve the objective of the UNFCCC.64 It is important to note that the principles in the UNFCCC also apply to the Kyoto Protocol,65 including any related legal instruments that seek to implement the UNFCCC objective.66 This means that they provide guidance for analysing, interpreting and implementation of commitments or obligations under the climate change regime.67
Suffice it to note that these principles are not peculiar to climate change regime, because most, if not all, were adopted from other international instruments and international customary law, although most of them fall short of being classified as international customary law.68 It has to be stated at the outset that it is beyond the scope of this study to discuss in any detail all the aforementioned principles and their application and implications on international climate change regime, save for CBDR-RC principle.
2.3.2.1 The CBDR-RC principle
The CBDR-RC principle is increasingly recognised in international environmental law.69 Despite this recognition, the legal nature of this principle has been subjected to legal
62 Scholtz 2009 CILJSA 168.
63 Yamin and Depledge The International Climate Change Regime: a guide to rules,
institutions and procedures 67.
64 Maguire "Foundations of International Climate Law: objectives, Principles and Methods" 91. 65 See Preamble of the Kyoto Protocol.
66 See Article 3 of the UNFCCC.
67 Tladi Sustainable Development and the Climate change regime: An analysis of key
envro-economic instruments 127; see also Maguire ―Foundations of International Climate Law: objectives, Principles and Methods‖ 100-103.
68 Maguire ―Foundations of International Climate Law: objectives, Principles and Methods‖ 91. 69 See Stone American Journal of International law 276; Rajamani "Differential Treatment in
International Environmental Law"8; See also Louka" International Environmental law:Fairness Effectiveness and World Order" 54.
debate. While others argue that the CBDR-RC principle lacks legal value70 in that it is "nowhere close to either hard or soft law",71 others argue that it is a "framework principle" with legal significance.72 Notwithstanding these legal debates, the crux of the CBDR-RC principle is that it allows differential treatment between states' obligations contained in the treaty itself. Honkonen73 identifies two elements of the CBDR-RC principle as applied in the context of international environmental treaties. These are:
First, it entitles, or possibly even requires, all concerned states to participate in international response measure aimed at addressing environmental problems. Second, it leads to the adoption and implementation of different commitments for states, taking into account their diverse circumstances and capacities, their historical contribution to problems, and their future developmental needs.74
In essence, the CBDR-RC principle not only recognises the fact that "certain problems affect and are affected by all nations in common",75 but it also recognises the need to "differentiate between countries actions required to achieve a common goal".76 The CBDR-RC principle as contained in the UNFCCC imposes different obligations or commitments to different groups of countries.
A treaty can either include this principle in explicit or implicit terms. Unlike other environmental treaties, the UNFCCC is the first binding international treaty that explicitly refers to the CBDR-RC principle.77 It is important to note that the Kyoto
70 Lang "UN-Principles and International Environmental Law" 162. 71 Biniaz 2002 American Society of International Law Proceedings 363. 72 Birnie, Boyle and Redgwell International Law and the Environment 78.
73 Honkonen The Common but Differentiated Responsibility in Multilateral Environmental
Agreement 1.
74 Honkonen The Common but Differentiated Responsibility in Multilateral Environmental
Agreement 1.
75 Yamin and Depledge The International Climate Change Regime: a guide to rules,
institutions and procedures 69.
76 Rajamani Differential Dreatment in the International Environmental Law 163.
77 For example, the Stockholm declaration of the United Nations Conference on the Human
environment (1972) without adopting the term recognised that "taking into account the circumstances and particular requirements of developing countries and any costs of which may emanates from their incorporating environmental safeguards into their development and planning and the need for making available to them, upon their request, additional international technical and financial assistance for this purpose". The other environmental treaties that implicitly includes the CBDR-RC principle includes: the Montreal Protocol on Substances that Deplete the Ozone layer, the Convention on Biological Diversity and the 1991 protocol to the Convention on long-Range Transboundary Air Pollution.
Protocol and most of the UNFCCC COP decisions acknowledges and refers to this principle.78
The main aim of this principle under the climate change regime is to govern the code of conduct of UNFCCC member states.79 Differentiating climate change mitigation obligations between states has been, and still is, one of the core characteristics underpinning the international climate change regime.80
The justification of the CBDR-RC principle in the climate change regime is underpinned by the existing disparities in relation to wealth, consumption resources between countries as well as the variation in the degree and nature of their contribution to climate change.81 Thus, rationale of CBDR-RC principle in climate change regime is the critical understanding of the unfairness of imposing the same obligations on all countries. This is because non-Annexed I countries neither possess the required capabilities nor capacities (technology and finance) to reduce GHG emissions, and mostly depend on GHG emitting technologies for their economic development. Moreover, Annexed countries are responsible for the majority historical GHG emissions. Thus, Article 3.1 of the UNFCCC provides that:
The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.82
The logic of Article 3.1 of the UNFCCC is that it provides a dichotomy between Annexed and non-Annexed I countries' mitigation obligations. It explicitly places more
78 For example the 1995 Berlin Mandate and the 2007 Bali Action Plan.
79 Mcinemey-Lankford, Darrow and Rajamani Human Rights and Climate Change: A Review of
the International Legal Dimensions 52.
80 Honkonen The Common but Differentiated Responsibility in Multilateral Environmental
Agreement 119.
81 These disparities and variations between different groups of countries can manifest in
different grounds and forms. For example, whereas the non-Annex I countries' GHG emissions are necessitated by the need to meet the basic needs such as agriculture and cooking, the Annex I countries GHG emissions may emanates from the manufacturing, use of private vehicles etc. In addition, it is generally accepted that, historically, Annexed countries contributed more to climate change than non-Annexed countries; See further Rajamani Differential Treatment in the International Environmental Law 178.
responsibility on the Annexed countries to take a "lead in combating climate change and its associated adverse effects".83 The CBDR-RC principle emerges in Article 4.2 of the UNFCCC which places an obligation on Annexed countries and those included in Annexed 1 to adopt national policies and other measures on climate change mitigation that:
demonstrate that developed countries are taking the lead in modifying longer-term trends in anthropogenic emissions consistent with the objective of the of the Convention. 84
Moreover, the CBDR-RC principle provided an impetus for the evolution of the climate change regime which has always been highly differential.85 This emerges in the Kyoto Protocol which assigns obligations on Annexed countries to collectively reduce their GHG emissions to at least 5 percent below 1990 levels by 2008 to 2012.86 This obligation does not apply to non-Annex I countries.
As mentioned above, the Paris Agreement retained the CBDR-RC principle with different connotations in that it obliges both developing and developed countries to take measures aimed at mitigating climate change, "in the light of different national circumstances".87 Of significance, however, the Paris Agreement requires developed countries to provide financial assistance for developing countries to enable them to achieve their climate change mitigation obligation.
2.3.3 Mitigation Commitments under the UNFCCC
The Article 4 of the UNFCCC entrenches the fundamental commitments of the parties that relates to both climate change mitigation and adaptation, albeit the latter is beyond the scope of this study. Apart from the mitigation commitments that are applicable to all parties, the mitigation commitments in the UNFCCC are not equally allocated to
83 Article 3.1 of the UNFCCC. 84 Article 4.2 of the UNFCCC.
85 It is important to note that there is also differentiation among the Annexed countries inter
se. for example, the countries that makes a 'transition to market economy' are exempted from numerous financial obligations imposed on other Annexed countries. see further Article 4.3 of the UNFCCC.
86 Article 3.1 of the Kyoto Protocol. 87 Article 2.2 of the Paris Agreement.
countries or groups of countries.88 The UNFCCC specifically differentiates between Annexed and non-Annexed I countries. This differentiation is underscored by the CBDR-RC principle and the recognition that the:
largest share of historical and current global emissions of greenhouse gases has originated in developed countries, that per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs.89
The commitments applicable to all parties are found in Article 4.1 of the UNFCCC, which is also binding on non-Annexed I countries. However, as discussed above, the mitigation commitments under the UNFCCC are premised on the CBDR-RC principle. For all intents and purposes non-Annexed I countries have a "common but differentiated responsibility" to achieve and meet commitments that are imposed on "all parties" to the UNFCCC. According to Articles 4.1 (b) and 4.1 (f) of the UNFCCC:
(all) Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall:
(b) Formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, using comparable methodologies to be agreed upon by the conference of the parties
(c) Promote and cooperate in the development, application and diffusion, including transfer, of technologies, practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases not controlled by the Montreal Protocol in all relevant sectors, including the energy, transport, industry, agriculture, forestry and waste management sectors.90
The commitments in Article 4.1 of the UNFCCC apply to both Annexed and non-Annexed I countries; hence they are regarded as general and qualitative.91 Bodansky92 argued correctly that Article 4.1 illustrates a "pledge and review approach" which
88 Note that Article 4.2 contains commitments for Annex 1 parties and Article 4.3,4.4,and 4.5
contains commitments applicable to Annex II Parties.
89 See preamble of the UNFCCC.
90 Articles 4.1 (b) and 4.1 (f) of the UNFCCC.
91 Bodansky 1993 Yale Journal of International Law 508. 92 Bodansky 2011 http://ssrn.com/abstract=1773865 6.
represents a bottom-up approach. In the same vein, Yemin and De Pledge93 noted that the chapeau of Article 4.1:
creates a highly differentiated regime as it means that there is no common standard that is being laid down, leaving each Party, in effect, to determine its own level of implementation ,taking into account the its own specific goals and circumstances. 94
It permits all parties to exercise their discretion when implementing their commitments in Article 4.1, and it also allow them to "tailor their responses to national drivers".95 This notwithstanding, there are additional qualifications for the implementation of Article 4.1 commitments by non-Annexed I countries. Firstly, Article 4.3 of the UNFCCC recognises that non-Annexed I countries will implement their commitments subject to provision of "new and additional financial resources" from Annexed II countries. Secondly, in terms of Article 4.5, their implantation of their commitments is subject to the transfer of technologies and the know-how from Annexed countries. Finally, article 4.7 of the UNFCCC recognises that the priorities for Non Annexed countries include "economic and social development and poverty eradication", all of which determines the extent to which these countries will implement their UNFCCC commitments. This also depends on financial and technological transfers from Annexed countries.
2.3.4 Conference of the Parties (COPs)
In addition to the mitigation commitments entrenched in Article 4.1, there are additional mitigation commitments that Annexed and non-Annexed I countries are required to implement which have been agreed to by the COPs. The COPs is the supreme body of the UNFCCC which is authorised "to make, within its mandate, the decision necessary to promote the effective implementation of the Convention".96 The
93 Yamin and Depledge The International Climate Change Regime: a guide to rules,
institutions and procedures. 92-93
94 Yamin and Depledge The International Climate Change Regime: a guide to rules,
institutions and procedures 93.
95 Rajamani "Developing Countries and Compliance in the Climate Regime"378.
96 Article 7.2 of the UNFCCC. See also Article 7.2(M) of the UNFCCC which authorises the COP
to "exercise such other functions as are required for the achievement of the objective of the Convention as well as other function assigned to it under the Convention".
COPs has already exercised this function on several occasions which includes the decisions that elucidated the UNFCCC obligations,97 reviewed the adequacy UNFCCC obligations, and initiated the negotiations to adopt additional obligations.98 It has to be stated that the parties meet every year in COPs and adopt COP decisions, however only relevant COPs for study will be discussed.
2.3.4.1 Bali Action Plan
The Bali Action Plan is the second decision that was adopted by the COPs pursuant to the Berlin Mandate which charted the negotiations that led to the adoption of the Kyoto Protocol. The Bali negotiations focused inter alia process for negotiating a post 2012 climate change regime that will be implemented by the parties upon the expiration of the Kyoto Protocol first commitment period. The Process was scheduled to be concluded in 2009 at the 15th COP meeting in Copenhagen.99 To this end, the Bali Action plan failed to produce a legally binding international instrument. This notwithstanding, the Bali action Plan has resulted in the adoption of several COP decision.100
The Bali Action Plan also focused on mitigation, adaptation, technology and financing. With regards climate change mitigation, the Bali Action Plan envisaged a vision calling both the Annexed I and non-Annexed countries to mitigate climate change. This was impelled by the deficiencies of Kyoto Protocol which imposes legally-binding GHG emissions reduction on Annexed countries only. A further impetus was the warning issued by the IPCC in its 4th Assessment Report (hereafter AR4) that global temperature increases above 3 degrees Celsius will probably result in extreme weather patterns, low agricultural productions or yields, growing rate of infectious diseases and malnutrition, sea level rises and increased risk for 20-30% of species extinctions.101 The Bali Action
97 See Decision 2/CMP 1(Principles, Nature, and Scope of the Mechanisms pursuant to Articles
6, 12 and 17 of the Kyoto Protocol ) FCCC/KP/CMP/2005/8/Add.1.
98 See Decision 1/CP.1 "The Berlin Mandate" FCCC/CP/1995/7/Add.1.
99 UNFCCC Date Unknown http://unfccc.int/key_documents/bali_road_map/items/6447.php. 100 For example the Cancun agreements.
101 See The Core Writing Team, Pachauri, Reisinger IPCC 2007: Climate Change 2007:
Synthesis Report Contribution of the Working Groups I, II, III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change 19.
Plan 2007 emphasised the need for GHG mitigation by non-Annex I countries. In particular, non-Annex I countries agreed in the Bali Action Plan in pursuit of GHG mitigations to adopt "nationally appropriate mitigation actions in the context of sustainable development supported and enabled the technology, financing and capacity-building, in a measurable, reportable and verifiable manner". 102
The nationally appropriate mitigation actions (hereafter NAMA) constitutes "policies, programmes and projects that non-Annexed I countries undertake" for GHG mitigation.103 This should be distinguished from emission reduction targets and commitments of Annexed countries.
2.3.4.2 The Copenhagen Accord
In 2009, the COP convened in Copenhagen and adopted the Copenhagen Accord104 in which the parties agreed that the deep cuts in GHG emission are required "so as to hold the increase in global temperatures below 2 ºC".105 However, there were no specified commitments for emission reduction that will be sufficient to achieve this objective. The Copenhagen Accord introduced a dynamic shift in climate change negotiations, focusing on GHG mitigation by non-Annexed I countries by retaining the concept of NAMAs.
The Copenhagen Accord took a bottom-up approach, requiring non-Annexed I countries to submit their NAMAs in a prescribed format, for compilation in an INF document by the secretariat.106 It provides that non-Annexed I countries "will implement" these mitigation actions and that the actions for least developed countries and Small Island developing countries may be taken "voluntarily and on the basis of support".107
102 UNFCCC Decision 1/CP.13 'Bali Action Plan' paragraph 1(b) (ii) available at
http://unfccc.int/resource/docs/2007/cop13/eng/06a01.pdf#page=3.
103 Anon 24 July 2014 http:/www.nama-database.org/index.php/NAMAs.
104 UNFCC decision 2/CP.15 available at
http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf(Copenhagen Accord).
105 Paragraph 2 of the Copenhagen Accord. 106 Paragraph 5 of the Copenhagen Accord. 107 Paragraph 5 of the Copenhagen Accord.
The NAMAs that non-Annexed I countries are required to implement differ from one country to another and this is in accordance with the CBDR-RC principle and the implementation thereof is also contingent upon adequate provision of finance and technology by Annexed countries.108 Moreover, the implementation of NAMAs also take into account the national circumstances, national socio-economic development strategies and priorities of the relevant non-Annexed I country, such as poverty eradication.109 The Copenhagen Accord established a registry for listing the NAMAs that requires international support and such NAMAs "will be subject to international measurement, reporting and verification in accordance with guidelines adopted by the Conference of the Parties".110
The Copenhagen Accord also recommended that the Copenhagen Green Climate Fund should be established which will provide financial resources to support policies, programmes and projects and other related GHG mitigation activities and adaptation in non-Annex I countries.111
Pursuant to the call for non-Annex I countries to submit their NAMAs, South Africa communicated that:
It will implement NAMAs to enable a 34 percent deviation below the 'business as usual' emissions growth trajectory by 2020 and a 42 percent deviation below the 'business as usual' emissions growth trajectory by 2025. 112
South Africa made it clear that the information that they communicated was in accordance with the provisions Article 12.1(b) and 12.1(4) of the UNFCCC, and pursuant to the provisions of Article 4.1 of the UNFCCC.113 Furthermore, it submitted that the mitigation actions they communicated will be undertaken in accordance with Article 4.7 of the UNFCCC and stated that the implementation thereof will be subject to
108 Paragraph 5 of the Copenhagen Accord. 109 Paragraph 5 of the Copenhagen Accord. 110 Paragraph 5 of the Copenhagen Accord.
111 Paragraphs 6 and 10 of the Copenhagen Accord.
112 UNFCCC "Compilation of information on nationally appropriate mitigation actions to be
implemented by developing country Parties" available at http://unfccc.int/resource/docs/2013/sbi/eng/inf12r03.pdf( Compilation of NAMAs) 216.
the provisions of finances, technology transfer and capacity-building support from Annexed countries.114
2.3.4.3 The Durban Platform for Enhanced Action, 2011
The Durban platform was adopted by the Parties to the UNFCCC in December 2011. It echoed the IPCC objective of keeping global average temperature increase below 2 or 1.5 °C above pre-industrial levels.115 Moreover, the Durban platform reemphasised the seriousness of climate change and highlighted the need for the "widest possible cooperation by all countries and their participation in an effective and appropriate international response, with a view to accelerating the reduction of global greenhouse gas emissions".116
The Durban Platform represented a new course for addressing international climate change and required "strengthening the multilateral, rules-based regime under the convention".117 To achieve this, it established the 'Ad Hoc Working Group on the Durban Platform for Enhanced Actions', which was responsible for launching a new round of negotiations pertaining to the development of "a new protocol, another legal instrument or an agreed outcome with legal force" that will be effective from 2020.118
2.4 The Kyoto Protocol
The Kyoto Protocol entered into force in 2005, following the negotiations that started in Berlin and subsequently culminated in the adoption of the Berlin Mandate.119 The Berlin Mandate recognised that the commitments in Article 4 paragraphs 2(a) and (b) of the
114 Compilation of NAMAs 217.
115 UNFCCC Decision 1/CP.17 " Establishment of an Ad Hoc Working Group on the Durban
Platform for Enhanced Action"(Durban Platform) http://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf#page=2.
116 Durban Platform. 117 Durban Platform. 118 Durban Platform.
119 UNFCCC Decision 1/ CP.1 "Berlin Mandate"
UNFCCC were inadequate,120 and as result, launched a process to strengthen the commitments of Annexed countries in Articles 4.2 (a) and (b) of the UNFCC,121 through "the adoption of a protocol or another legal instrument".122 In regards to the commitments for non-Annex I counties, the Berlin Mandated noted that the process will:
not introduce any new commitments for Parties not included in Annex I, but reaffirm existing commitments in Article 4.1 and continue to advance the implementation of these commitments in order to achieve sustainable development, taking into account Article 4.3, 4.5 and 4.7. 123
Subsequently, in 1997, the Kyoto Protocol to the UNFCCC was adopted to provide legally binding emission reduction targets or commitments for Annexed countries – to "operationalise" the UNFCCC.124 The Kyoto Protocol set targets for emissions of GHGs by Annexed countries125 and its first commitment spanned from 2008 to 2012. In 2007 at COP 13 in Bali,126 the parties agreed adopt a roadmap for negotiating a post 2012 regime to succeed the Kyoto Protocol after the end of its first commitment period.127 At COP 15 in Copenhagen the negotiations failed to give rise to a post 2012 regime.
The parties subsequently agreed on second commitment period of the Kyoto Protocol at COP 17 in Durban in 2011, but the agreement was signed at COP 18 in Doha in 2012 known as 'the Doha Amendment to the Kyoto Protocol'(hereafter Doha Amendment).128 The Doha Amendment brought about the following amendments:
120 See the chapeau of the Berlin Mandate. 121 Para 2(a) Berlin Mandate.
122 See the chapeau of the Berlin Mandate. 123 Para 2(b) of the Berlin Mandate.
124 Maguire "Foundations of International Climate Law: objectives, Principles and Methods" 87. 125 In addition to the emission reductions, the Kyoto Protocol also requires the Annexed
countries to provide financial and technological support for non-Annexe I countries to assist them to mitigate climate change and to adapt to effects thereof.
126 UNFCCC (Decision 1/CP.13) Action Plan 'Bali Action Plan' available at
http://unfccc.int/resource /docs/2007/cop13/eng/06a01.pdf#page3.
127 It is important to note that the parties commenced with negotiations for the second
commitment period of the Kyoto Protocol in 2005 in Montreal.
128 UNFCCC Decision 1/CMP. 8 'Amendment to the Kyoto Protocol Pursuant to its Article 3,
Paragraph 9( Doha Amendment) available at http://unfccc.int/resource/docs/2012/cmp8/eng/13a01.pdf#page=2.
New commitments for Annex I Parties to the Kyoto Protocol who agreed to take on commitments in a second commitment period from 1 January 2013 to 31 December 2020;
A revised list of greenhouse gases (GHG) to be reported on by Parties in the second commitment period; and
Amendments to several articles of the Kyoto Protocol which specifically referenced
issues pertaining to the first commitment period and which needed to be updated for the second commitment period.129
2.4.1 The commitments for developing countries under the Kyoto Protocol
In line with the texts of the Berlin Mandate, the Kyoto Protocol did not introduce new commitments for the non-Annex I countries. In others words, the non-Annex I countries under the Kyoto Protocol do not have legally binding emission reductions commitments. Article 10 of the Kyoto Protocol highlights the commitments for all parties and endorses the CBDR-RC principle. However, those commitments are not absolute for the non-Annex I countries. To this end, the Kyoto Protocol provides that the requirements for Article 10 operate:130"without introducing any new commitments for
parties not included in Annex 1, but reaffirming existing commitments under Article 4, paragraph 1, of the Convention."
According to Article 10 paragraph (b), all parties are required to 'formulate, implement, publish and regularly update' programmes that contains measures to mitigate climate change.131 These include programmes that concern the energy sector.132 Therefore, an argument can be made that renewable energy programmes must be implemented as measure to achieve mitigation of climate change.
The implementation of Article 10 for non-Annex I countries depends on the financial assistance from Annexed countries as required by article 11 of the Kyoto Protocol. Article 10 read with article 11 of the Kyoto Protocol suggest indicates that the non-Annex I countries have common but differentiated responsibility to mitigate climate change.
129 UNFCCC 2014 http://unfccc.int/kyoto_protocol/items/2830.php. 130 Article 10 of the Kyoto Protocol.
131 Article 10 paragraph (b) of the Kyoto Protocol. 132 Article 10 paragraph (b)(i) of the Kyoto Protocol.
