What approach could we take to bind the USA to emissions reduction targets in the Bali Action Plan (“BAP”) comparable to the KP?
See para 4 below for a suggested negotiating approach to achieve the above, but note the discussion in paras 1-3 regarding the likelihood of the US going beyond the limited reductions that it may be able to make in domestic US legislation.
1. The USA’s current stance
At the outset, it should be noted that the US negotiators have stated that the US will not sign:
- The Kyoto Protocol
- Any treaty binding it to emissions reductions until such time as they have been given a mandate from their government (i.e. domestic legislation detailing reductions).
It is clear that until such time as the US senate has passed the required domestic legislation, US negotiators are not going to agree to be bound by any such provisions, under para 1(b)(i) of the BAP or otherwise.
- 2. Status of the Bali Action Plan
The Bali Action Plan is and was not intended to be ‘text’, but rather set out the areas the parties were to consider within the time frame leading up to Copenhagen, and the issues which required agreement. The text that deals with the emissions targets for Developed Countries is currently NP 25 (this has just become NP 50).
- 3. The US Senate, domestic legislation and negotiations
While not strictly a response to the question, I would suggest that there is not any great uncertainty as to what the US commitments will be (provided their senate approves the bill). What is cause for greater concern is possibly the weight that is being placed on the outcome of the senate decision (‘we cannot make a decision until such time as the US has a mandate to negotiate…’) by numerous negotiators: the US will never concede to greater emissions reductions under the LCA than it has legislated domestically. Given that the proposed reductions under the domestic legislation amount to effectively 8-10% below 1990 levels, it is clear that the US will never meet up to the required (and demanded, by developing countries) levels of 25 – 40 % by 2020, even if the internal legislation is passed. In effect then, negotiators are waiting for the US to commit to a figure that they are never going to commit to. While this is likely (possibly with very good cause) to engender substantial ill-will towards to US and anger from other parties, consideration probably needs to be given to how other parties can incorporate what is a factual rather than negotiating position.
When considering how to craft the text around paragraph 1(b)(i), it might be more appropriate to consider how to link US commitments, when they come, to reductions targets assumed by other developed country parties. While drafting this response, a new non-paper, NP 50, replaced NP 25. This new NP seems to provide for non-Kyoto Protocol parties to commit to individual targets and mirrors to an extent the relevant provisions of the Protocol (for example, trading REDD credits, mechanisms). This appears to be a step in the direction of catering for the US refusal to sign the Protocol, but again will require a figure from the US.
It appears that this is the best outcome that can be expected of the US concerning emissions reductions. Following on from the comments above, it might be worth parties giving thought to how to make the best of the US stance: if they are not going to concede to the full extent of the required reductions, can they not be persuaded to take greater steps on financing, for example?
This ‘answer’ has not directly considered the approach requested, as it seems quite clear what the US position is. It is therefore suggested that the text will be crafted to incorporate whatever decision the US senate makes (as NP 50 appears to do), and that pressure on the US in respect of emissions reductions may well be futile. Given, however, the stated position of the US that they are prepared to assist with finance, it may be worth considering addressing the negotiating stance to be adopted when dealing with the US.
- 4. A pro-active approach
Insofar as it may be desirable to adopt an aggressive approach in negotiating with the US, attention should be focussed on the second section of NP 50 (‘Mitigation commitments or actions’), from paragraph 2 onwards (please see below). The text used in paragraph 2 (with the required emissions reductions inserted) should be adopted, and the text included in paragraphs 3 to 6 should be removed. This could effectively use the LCA to compel the US to sign up to similar reductions targets as those demanded of Kyoto protocol-signatory developed countries.
“Mitigation commitments or actions
2. The enhanced mitigation commitments or actions by developed country Parties[, whether or not they are Parties to the Kyoto Protocol,] [Annex I Parties that are not Parties to the Kyoto Protocol] [shall] [should] lead to a collective reduction of their GHG emissions by [at least ] [in the order of 30] [at least XX] [XX-YY] per cent in the year 2020 compared to the  [base year] [XXXX] level, and by [at least [XX]] [XX-YY] [more than 95] [more than XX per cent] below their [base year] [XXXX] levels by 2050.”
Linked to this, insistence should be placed on the removal of the first option to paragraph 25, in order that the second option (strong penalties for non-compliance) can be motivated for adoption.
“25. The monitoring and assessment of compliance [shall][should]
[Option 1: utilize procedures and mechanisms to address cases of non-compliance determined by the principle that they should be designed to facilitate compliance in the future.]
[Option 2: lead to the application of penalties for non-compliance, including [increased future reduction commitments by an amount calculated as a multiple of the shortfall in implementation [and] [as well as ] financial contributions as penalties [10 times the market price of one tonne of carbon and ] [or] fines [and] paid into [an enhanced] [the Convention] financial mechanism][monetary penalties to be paid to the Adaptation Fund][a mechanism that establishes clear and direct consequences for non-compliance] [taking into account experiences gained from relevant international agreements].]]”