The Bali Climate Change Conference
The Bali Roadmap marks a milestone in the process of international consensus building, setting forth a multilateral legal framework to address climate change. Delegates at the UN Climate Change Conference in Bali (Dec. 3-15 2007) launched a two-year process with a comprehensive agenda and 2009 deadline to complete negotiations for a post-2012 agreement. The Bali Conference included both the thirteenth annual meeting of the Conference of the Parties (COP 13) to the 1992 UN Framework Convention on Climate Change (UNFCCC) and third Conference of the Parties serving as the Meeting of Parties to the 1997 Kyoto Protocol (COP/MOP 3).
The building blocks of the Bali Roadmap include: mitigating climate change by cutting emissions; facilitating clean technology transfer; adapting to such consequences of climate change as floods and droughts; and financing adaptation and mitigation measures. Bali delegates additionally agreed to support activities such as funding developing countries to prevent deforestation. This process will include demonstration initiatives involving indigenous communities over the next two years -- culminating in negotiations on forestry in relation to a post-2012 regime. Bali delegates agreed to establish a mechanism to fund tropical countries to preserve their rainforests and launched an Adaptation Fund.
The Working Group on Long-Term Cooperative Action
COP 13 established an Ad Hoc Working Group on Long-Term Cooperative Action that shall hold its first meeting by April 2008 and complete its work in 2009. The agenda will include enhanced national/international action on (1) technology development and transfer, (2) adaptation, (3) provision of financial resources and investment, and (4) mitigation of climate change by cutting emissions.
Technology development and transfer will be facilitated by developed countries to scale up the use of clean technology in the developing world. Countries can negotiate a technology agreement as an amendment to the UNFCCC or as a freestanding clean technology transfer treaty. Funding will facilitate the transfer of wind turbines, solar panels, drip irrigation, and a wide range of other crucial clean technologies. Bali delegates agreed to establish an interim funding program under the Global Environment Facility (GEF) until substantial technology funding can be made available through the comprehensive agreement likely to be reached at COP 15 in Copenhagen in 2009. Countries agreed to launch an investment program to transfer mitigation/adaptation technologies to developing countries. The Expert Group on Technology Transfer (EGTT) will be extended for another five years and will report to both the Subsidiary Body for Scientific and Technological Advice (SBSTA) and the Subsidiary Body for Implementation (SBI). The EGTT will develop performance indicators to monitor and evaluate the implementation/effectiveness of technology transfer. The EGTT will make recommendations to the subsidiary bodies on such issues as subsidizing licenses for clean technology transfer and increased investment to facilitate this process. A strategic program under the GEF will finance technology transfer, which will be augmented by the consideration of additional funding sources.
Adaptation will involve international cooperation to support urgent needs of particularly vulnerable developing countries. A significant breakthrough at the Bali Conference came with agreement that the Adaptation Fund Board would operate with the guidance of the COP/MOP. The GEF will provide an interim secretariat role. Bali delegates agreed to support urgent implementation of measures to protect poor countries from negative consequences of climate change and to consider ways to lower the chances and/or damage from climate change impacts.
Financing will be adequate, predictable and sustainable. Dialogue nearly stalled over who will fund clean technology transfer and how developed and developing countries should share the responsibility to mitigate climate change by reducing emissions. After noting that the US was primarily responsible for blocking progress at Bali, Nobel Peace Prize Laureate Al Gore urged negotiators to draft an open-ended agreement the details of which could be determined after the 2008 US elections.
Mitigation by developed countries
Mitigation by developed countries will involve quantified emission limitations and reductions, taking into account differences in national circumstances. Meaningful action that establishes collective standards with individual country implementation can address global climate change. Resolving equity and efficiency aspects of tradable permits and clean technology transfer can achieve sustainable development. A post-2012 agreement can combine (1) fixed, binding emission reduction targets for developed countries, (2) binding dynamic targets for the wealthier developing countries and (3) voluntary targets for the least developed countries.
Globally, the energy sector contributes roughly 80 percent of greenhouse gas emissions. The World Bank estimates a 60 percent increase in global energy production carbon emissions by 2030. Environmentally clean technology can be supported through the enactment of governmental subsidies for renewable energy and the removal of subsidies for energy generation that poses high risks to human health and the environment.
Cap-and-trade programs can be established, linked, and sustained globally in an equitable and transparent manner. The second period of the European Union Emissions Trading Scheme will occur from 2008 to 2012, coinciding with the Kyoto Protocol's first commitment period. The EU emissions trading program is linked to the Kyoto Protocol's Joint Implementation and Clean Development Mechanism. Companies can buy emissions reduction credits from CDM/JI projects to offset their emissions. Cap-and-trade programs allow players to choose the most cost effective approach, comparing investing in clean technology, increasing energy efficiency, or buying credits from a source that has lower emission reduction costs. The global cost of climate change mitigation can be minimized when trading facilitates emissions reductions where they are least expensive to implement. The key to a successful trading program is to determine initial emissions accurately and allocate permits wisely.
Mitigation by developing countries
Within a sustainable development framework, mitigation by developing countries will involve nationally appropriate mitigation actions that are measurable, reportable and verifiable. Such mitigation will be supported by developed country clean technology transfer, financing and capacity-building. Bali participants did not settle the mitigation debate until the final hours of the conference at the COP plenary session on Saturday. Senior officials negotiated past the scheduled close of the Bali Conference at 6:00 pm on Friday, December 14. At 10:30 am Saturday morning, UN Secretary General Ban Ki-moon and Indonesian President Susilo Bambang Yudhoyono returned to the conference, urging delegates to reach a consensus. Ban Ki-moon stated that, "[t]he hour is late. It is time to make a decision." He appealed to delegates not to "risk everything you have achieved so far."
India's proposal on behalf of the G-77+China addressed the differences in national circumstances amongst developing countries -- recognizing that such countries as China and India would be willing to make reduction pledges. While the developing countries did not agree to the binding reductions requested by the US, the developing world offered to compromise. Developing countries whose national circumstances enabled emissions reductions would agree to work out the details of reductions over the next two years. Existing language read that rich countries should take on commitments or actions to cut their emissions. Kyoto style commitments would bind states to specific targets.
The Negotiation Process
The US wanted to retain the word "actions" as a way to continue voluntary rather than binding carbon emissions reductions. The text called upon developing countries to take measurable, reportable, and verifiable action to reduce their emissions, a significantly heavier obligation than previous measures relating to developing countries. Developing countries agreed to these obligations so long as developed nations funded and facilitated the process of clean technology transfer in a manner that would be measurable, reportable and verifiable. The EU and developing countries were reaching consensus when the US intervened with the assertion that developing countries had not taken on sufficient commitments for the US to accept the balance of obligations. The crowded hall erupted into booing as negotiators and civil society expressed their dismay. This international outcry impacted the members of the US delegation. South Africa asked the US to reconsider. On behalf of all small island developing countries, Tuvalu asked all parties in the hall to accept the text. Each country that asked the US to alter its position received sustained applause. Since decisions at Bali were made by consensus, it looked as if the US would succeed in blocking a Bali agreement.
Anger had been building all week as the US delegation systematically derailed negotiations. The US came out with a counter-proposal that went against the spirit of both the Framework Convention and the Kyoto Protocol at 3:00 am on Friday morning, shortly after having reopened deforestation negotiations that were widely believed to have been concluded. James Connaughton, President George W. Bush's chief adviser on environmental issues had been asked why the US was not providing climate leadership. "We are leading and we will continue to lead," he said. "But leadership requires the rest of the world to fall in line and follow us." By Saturday, tensions were running high. Papua New Guinea summed up the position of the international community stating, "[w]e all came with high expectations. The world is watching us. We left a seat for every country. We asked for leadership. And there is an old saying: if you are not willing to lead, then get out of the way. And I would ask the US: we ask for your leadership, we seek your leadership. But, if for some reason you are not willing to lead, leave it to the rest of us - please, get out of the way." The room erupted into applause. US negotiators began exchanging notes then asked to speak again. Lead US negotiator Paula Dobriansky stated that, "[w]e have listened very closely to many of our colleagues here during these two weeks . . . I've especially listened to what has been said in this hall today . . . We are heartened by the firm commitments that have in fact been expressed by the developing countries . . . we will go forward and join consensus." After overwhelming isolation, the US removed its block on the final text. Bali demonstrated that civil society participation and sustained international interactions can achieve consensus on emissions reduction in line with the science. Global pressure forced the US to make a U-turn reversal of its position during all-night negotiations. Together, Bali delegates accomplished the feat of agreeing to negotiate a framework to address climate change by 2009.
The decision on long-term action under the Framework Convention was finally adopted on Saturday afternoon, when parties agreed to India's proposal on behalf of developing countries that included nationally appropriate mitigation actions by developing country parties in the context of sustainable development. If supported by technological and financial capacity building, then developing countries could agree to measurable, reportable and verifiable actions to reduce emissions. The COP/MOP and Ad Hoc Working Group (AWG) went on to finalize decisions on remaining aspects of the Bali Roadmap, concluding 24 hours past the scheduled end of the Bali Conference.
Consensus has been reached to adopt deep reductions to greenhouse gas emissions in line with the IPCC's initial target of 25 to 40 percent reductions below 1990 levels by the year 2020 and a peak and decline within the next 10-15 years. This scientific time frame is not flexible - representing the total global reductions required to avert the most catastrophic effects of climate change. The EU and US spent most of the conference in a heated debate over whether developed countries should promise to cut their emissions 25 to 40 percent by 2020. The EU said that it would boycott the Bush Administration's parallel climate negotiations. The US refused to allow numbers into the Bali Action Plan's nonbinding preamble. As a compromise, the Bali Action Plan's sole footnote refers to the volumes and page numbers where the 25 to 40 percent reductions in emissions appear in the IPCC reports.
Reaching consensus was a draining process that extended through several nights and into an eleventh day of negotiations. Reducing the Nobel Prize-winning IPCC conclusions to a footnote kept the US at the table and willing to address climate change as indicated in the Fourth Assessment Report of the IPCC. The next two years will determine whether the international community can forge an effective and equitable international response to catastrophic climate change. David Doniger, policy director on climate change for the Natural Resources Defense Council, notes that the "no targets" position taken by developing countries prior to Bali became known as the Berlin Wall. At Bali, developing countries agreed to dismantle the Berlin Wall of climate change. "The door is open to negotiate binding obligations for both sides of the equation, developed and developing," explains Doniger, "[b]ut what it's going to take in order to get developing countries to move is for the United States to agree to an absolute limit and reductions." 
The Executive Secretary's "dismantling of the Berlin Wall" analogy describes one of the most important shifts at Bali. The Ad Hoc Working Group (AWG) on Long-Term Cooperative Action for the first time used "developed" and "developing" countries, instead of "Annex I" and "non-Annex I" countries. Common but differentiated responsibilities on the part of countries can be assessed based upon current economic capacities. Avoiding Annex language also brings the future role of the US squarely into the negotiations, irrespective of the US position not to ratify the Kyoto Protocol. Yet, moving away from the Kyoto Annex I framework may tempt Annex I countries to seek lower emissions commitments than they agreed to under the Kyoto Protocol. Proposals to establish a "firewall" retaining existing Annex I party commitments have been put forth.
After the COP adopted the Bali Roadmap, the Ad Hoc Working Group (AWG) under the Kyoto Protocol track held its closing plenary on the evening of December 15. In relation to the language that the AWG be guided by a "shared vision" of the Convention's ultimate objective, the AWG resolved to add the EU proposed language to spell out the findings of the IPCC's Fourth Assessment Report and the need for global emissions to peak within the next 10-15 years then fall to well below 2000 levels by the middle of the century. It also indicated that Annex I parties as a group would need to reduce their emissions by 25 to 40 percent from 1990 levels by 2020. Only Canada and the Russian Federation objected. The mitigation debate played out through the disputes under the Convention and under the Protocol over the IPCC Fourth Assessment Report. In the AWG under the Protocol, Canada, Japan, and Russia opposed any reference to the 25 to 40 percent reduction of greenhouse gas emissions. Under the Framework Convention track, the mitigation debate also cropped up in relation to the Dialogue on Cooperative Action. Countries, UN entities, intergovernmental organizations, non-governmental organizations, the media, and civil society struggled to reach common ground, particularly on mitigation, funding clean technology transfer, and adhering to scientific recommendations.
U.S. Domestic Legal Considerations
The global attention directed to the Bali negotiations has turned to the US election process. Congress first mandated international climate negotiations in 1987 when it enacted the Global Climate Protection Act. In 1992, President George H. W. Bush signed, and the Senate approved, the United Nations Framework Convention on Climate Change that brought together a coalition of countries for a coordinated approach to climate change. The Lieberman-Warner bill (S. 2191) has cleared the Senate Environment and Public Works Committee and is likely to be brought before the Senate floor in 2008. It proposes that US emissions be reduced by roughly 70 percent by 2050. States within the US have begun filling the regulatory gap on climate change mitigation. In Massachusetts v. Environmental Protection Agency, Massachusetts requested the US Supreme Court to grant an injunction requiring the EPA to regulate the carbon emissions of new motor vehicles pursuant to section 202(a)(1) of the Clean Air Act. The Supreme Court found that greenhouse gases are pollutants pursuant to the Clear Air Act and are subject to EPA regulation. Post-Bali the Bush administration remains concerned about US economic competitiveness in relation to booming economies in developing countries. James Connaughton notes that, "[w]e are giving serious consideration to the proposals from the European Union, Japan, and Canada of at least halving emissions by 2050 . . . making substantial cuts over the long term also requires some pretty significant changes in technology, especially when it comes to energy systems." The United States spent $18 billion on climate research between 1990 and 2006. In 2008 the US will launch a multi-billion dollar Clean Technology Fund with the goal of reducing trade barriers for environmental goods and services.
The Role of the United Nations
The British government has obtained the unanimous agreement of all fifteen of the Security Council's members for the Security Council to consider those parts of climate change that relate to the work of the Security Council. Issues placed on the agenda must involve "a threat to international peace and security." Climate change could displace 200 million people by the middle of the century according to the United Nations. UN Secretary General Ban Ki-Moon has noted that climate change is a comparable threat to war. The Security Council could create a subsidiary organ to work on greenhouse gas mitigation and climate adaptation and call upon all nations to produce annual climate implementation reports. A subsidiary organ of the Security Council could conduct reviews of state progress. United Nations members broadly acknowledge the transboundary ramifications of climate change. Article 27 of the UN Charter states that substantive Security Council decisions require the "affirmative vote of nine members, including the concurring votes of the permanent members." China and the United States are two permanent members of the Security Council that have delayed international climate cooperation. Thus, negotiations within the Security Council could serve as a catalyst for genuine climate consensus building.
Bali delegates discussed the building blocks (1) mitigation, (2) adaptation, (3) technology and (4) finance under the Bali Roadmap talks as well as in relation to such issues as launching the Adaptation Fund. The Bali Conference has launched a two-year negotiation process; established a deadline for concluding a new agreement at COP 15 and COP/MOP 5 in Copenhagen in 2009; and set forth a roadmap for a new agreement to be ratified and to enter into effect in 2013 when the Kyoto Protocol's first commitment period expires.
As the Bali Conference indicates, transparency and civil society participation can play a crucial role in achieving international agreement in keeping with scientific climate consensus. Forums that increase the frequency of interactions enable negotiators to build trust and form stable expectations. Four meetings are scheduled for 2008 rather than one to facilitate timely consensus building in this implementation phase of the Bali Roadmap. The new agreement will involve commitments to reduce emissions by developed parties to the agreement and measurable, verifiable and reportable actions by developing parties. Such actions will likely require financial and technical assistance from developed countries and/or finance from carbon trading. Multilateral coordination can develop a framework for climate stabilization. As Gandhi pointed out "we must be the change that we wish to see."
About the Author
Professor Elizabeth Burleson, an ASIL member, has a LL.M. from the London School of Economics and Political Science and a J.D. from the University of Connecticut School of Law. She has written reports for UNICEF and UNESCO and is a professor at the University of South Dakota School of Law. Professor Burleson attended the Bali Climate Conference with the UNICEF Delegation and helped facilitate youth participation on climate change law and policy.
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