Originally published April 25, 2008

Keywords: Bali Road Map, Climate Convention, Kyoto Protocol, climate change talks, CO2 emissions, December 2009 Conference of the Convention and Protocol Parties, Framework Convention, Bali Action Plan

The momentum gained in December 2007 from the adoption of the "Bali Road Map" by Parties to both the Climate Convention and the Kyoto Protocol was not evident at the climate change talks held during the first week in April in Bangkok, Thailand. The talks are aimed at formulating international agreement on curbing carbon dioxide (CO2) emissions, primarily from specified sources, worldwide. However, the dual meetings, ending in the wee hours of April 5, gave every indication that actual negotiations are unlikely to begin in 2008, making it difficult to foresee concrete results in time for the December 2009 Conference of the Convention and Protocol Parties in Copenhagen, Denmark. This should concern US businesses, faced as they are with federal and state legislative proposals that regulate only US business but leave unaddressed the unfettered growth of CO2 emissions by developing countries.

The "two-track process" initiated in Bali called for a continuation at the March 31-April 4 Bangkok conference of talks by the Kyoto Protocols Ad Hoc Working Group with respect to the post-2012 commitment period and targets applicable solely to industrialized countries other than the United States. Those talks called the "Kyoto track" process were held in conjunction with a new, but separate, Ad Hoc Working Group established at Bali to negotiate a global "decision" to include not only the United States but also all CO2-emitting countries under the Framework Convention on Climate Change called the "Convention track" process.

Before Bangkok, the Kyoto Ad Hoc Working Group met four times. The Bangkok meeting was the first half of a two-part fifth session, with the second half scheduled for June. Rather than negotiating, the Group held a three-day workshop, primarily to analyze the "means" available to the Kyoto Protocols Annex I Parties (i.e., developed countries) to achieve yet to be determined post-2012 targets. The Group concluded that while the Protocols existing mechanisms of emission trading, joint implementation, and the clean development mechanism could be "improved," each of them will be available post-2012. Yet even though making such improvements could complicate and delay negotiations, they nevertheless plan to consider improvements in June. However, the G-77 countries and China stressed that the "life of the Kyoto Protocol is continuous," that only the first commitment period of 2008-2012 expires, and that the "legal mandate" of the Protocols Article 3.9 is for the Group to focus "specifically" on new emission targets and setting a second commitment period, signaling their belief that such improvements are not within the Articles scope.

Despite a specific instruction in the Bali Action Plan for the Convention Group to develop a work program "at its first session" outlining its 2008-2009 agenda, the Group deferred this task until its June session, with the view to completing it later this year for its 2009 sessions. It did, however, agree to consider together the four Bali Plans "elements" of mitigation, adaptation, technology and financial aid at all its sessions, taking into account the intended "interlinkage among them."

The Group also agreed to hold eight workshops. The subjects of these workshops will include: investments and financing meant to address climate change; mechanisms and means to remove obstacles to, and provide financial aid for, "scaling up" the development and transfer of technologies to developing countries; policies and incentives for reducing emissions from deforestation and forest degradation in developing countries; cooperative sectoral approaches, and sector-specific actions, to implement the Convention; and risk-management and risk-reduction strategies, including risk-sharing through insurance, as urged by the Small Island countries.

Workshops, if properly focused, open to all Parties, and well-balanced, can be helpful tools. However, they are time-consuming and costly and it is difficult to see how all eight can be held before the start of 2009.

During the session, some countries, led by Switzerland and supported by Canada, urged coordination or linkage between the two Working Groups. However, the G-77 and China, supported by the United States, essentially rejected such a suggestion, saying that the Groups "are parallel processes with specific and differentiated mandates." Also, there were obvious disagreements between the developed- and developing-country Parties over several features of the Bali Action Plan. For example, in regard to its reference to a "shared vision for a long-term cooperative action, including a long-term global goal for emission reductions," the G-77 and China declared that goal to be the "ultimate objective" of the Convention, as stated in Article 2. On the other hand, the United States and other developed countries referred to the goal as "aspirational," and not binding.

While not debated in the session, it is clear from discussions with delegates that the priority among the developing countries is the agreement on Annex I targets, before 2010, for a second commitment period under the Protocol. These countries contend that this must occur before there is consideration of a new approach under the Convention. The discussions in Bangkok also raised the issue of what is meant by the wording of the Bali Action Plans call for the Group to "reach an agreed outcome" that will lead to a "decision" by the Conventions Conference of the Parties (COP) at Copenhagen in December 2009. Some delegates with Group responsibility informally said that this decision would not be an amendment to the Convention and that, if a second protocol is intended, the process would likely extend beyond 2009. In this regard, the Working Group also identified a "need" for "at least" four sessions in 2009, presumably for negotiations, although not specified, with a total duration of "up to eight weeks." Notably, the negotiating group of the Kyoto Protocol forwarded a protocol text to the COP for final negotiation after eight sessions, but those sessions started in mid-1995 and did not end until November 1997.

David B. Finnegan of Mayer Browns Global Trade practice attended the Bangkok session. The next session for these two Groups will be June 2-13, 2008, in Bonn, Germany, in conjunction with other meetings of other processes under the Convention and the Protocol. The last session in 2008 will be in Poznan, Poland, in conjunction with the annual session of the Conference of the Parties. The third session date and location is not yet determined.

Learn more about our Global Trade and Environmental practices.

Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; and JSM, a Hong Kong partnership, and its associated entities in Asia. The Mayer Brown Practices are known as Mayer Brown JSM in Asia.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

Copyright 2008. Mayer Brown LLP, Mayer Brown International LLP, and/or JSM. All rights reserved.