The Bali UN Climate Conference in December 2008 succeeded in resolving a long-standing disagreement between developing countries and the USA by introducing a special negotiating track on Long-term Cooperative Action (LCA) under the UN Framework Convention on Climate Change − as separate from the Kyoto Protocol (KP) negotiation track − and by introducing a clear distinction within the former between the mitigation agenda for developing and for developed countries (in paragraphs 1.b.i and 1.b.iii). However, what the Bali Conference did not achieve, was a consensus on how the outcome(s) of the two tracks would relate to each other – what the legal form of the Copenhagen Agreed Outcome (CAO, as it was known) would be.
There was a clear effort in the months leading up to the Copenhagen Climate Conference in December 2009 to “fuse” the two tracks, i.e. to have a single outcome, preferably in the form of a legally binding international treaty to supplant the Kyoto Protocol (which was meant by some to be based on the “key elements” of the Protocol). However, since Copenhagen, almost everybody has realized that this is not going to happen, that we are back on the twin-tracks of the Bali Action Plan (BAP), and back with the question of what the legal format of a Cancun Agreed Outcome (again CAO) in December this year could be.
The problem is that if key Parties in the KP-track insist that all major economies take on legally binding commitments through a global and comprehensive climate treaty, then the negotiations seem to be doomed to have no agreed outcome. The aim of this Report is to suggest a way forward which could avoid this doomsday scenario.
The solution to the legal format problem proposed here is based on the fact that treaties are not the only way in which countries can bind themselves internationally. An alternative instrument which has been used in the past – for example in avoiding the breakdown of the second round of the Strategic Arms Limitation Talks (SALT II) between the US and the then USSR – is that of issuing a Unilateral Declaration (UD).