Daniel Bodansky

The Durban Platform: Issues and Options for a 2015 Agreement December 2012 By Daniel Bodansky Download the full brief (PDF)

The Durban Platform talks, aiming for a new global agreement in 2015, present an opportunity to assess and strengthen the international climate change effort. Since launching the U.N. Framework Convention on Climate Change two decades ago, governments have tried both "top down" and "bottom up" approaches. Neither has achieved the levels of participation or ambition needed to reverse the continued rise of global greenhouse gas emissions. Going forward, governments should draw on both models to forge a more effective global agreement.

November 2011 by Daniel Bodansky Download the full brief (pdf) Press Release

A number of established multilateral regimes offer important avenues for climate mitigation efforts complementary to those of the U.N. Framework Convention on Climate Change (UN FCCC ). Tackling discrete dimensions of the climate challenge in regional, sectoral and other global venues can yield action on multiple fronts, contributing toward closing the gap between national pledges and the UN FCCC goal of limiting warming to 2 degrees Celsius. This brief examines ongoing and potential efforts in the International Maritime Organization, the International Civil Aviation Organization, the Montreal Protocol, and the Convention on Long-Range Transboundary Air Pollution.

Introduction:

Global climate change draws the attention of governments at every level, from the village board to the U.N. Security Council. At the international level, the U.N. Framework Convention on Climate Change (UNFCCC) has been the hub of efforts to address the threat of climate change. But over time, many other international institutions have become engaged in climate-related work. Indeed, one recent study identified more than sixty institutions that perform some governance function, broadly defined. These include international organizations such as the International Maritime Organization (IMO), the International Civil Aviation Organization (ICAO) and the World Bank, privately-sponsored initiatives such as the Greenhouse Gas Protocol, and publicprivate partnerships. Together these institutions form what some have called a “transnational regime complex” related to climate change.

Tackling the climate change problem outside the UNFCCC presents both risks and opportunities. On the one hand, proceeding in a piecemeal way in multiple forums may fragment efforts, making it more difficult to mobilize strong global action. On the other hand, given the breadth and complexity of the climate challenge and the limited progress within the UNFCCC, tackling discrete dimensions of the climate challenge in other forums can allow targeted, incremental progress in the near-term, building toward a stronger global response. Moreover, given uncertainties about the success of any individual negotiating process (including the UNFCCC), diversifying one’s portfolio of policy approaches helps reduce the risk of failure.

Among other reasons to pursue climate efforts in other multilateral forums:

• In institutions with a track record of success, such as the Montreal Protocol on Substances that Deplete the Ozone Layer, participants have developed working relationships that help instill trust and promote cooperation.
• Institutions with a sectoral focus, such as the IMO and the ICAO, have a tradition of cooperation that can help facilitate agreement, and allow a response tailored to the specific nature of the sector.
• Some institutions have procedural rules that make agreement more likely. For example, in contrast to the consensus rule in the UNFCCC, the IMO allows decisions to be made by a qualified majority vote—a voting rule that allowed the recent adoption of mandatory efficiency standards for new ships, despite opposition by China, Brazil, Saudi Arabia, and others.
• Some, such as the Convention on Long-Range Transboundary Air Pollution (CLRTAP), provide a regional forum for action where established relations may make it easier to achieve agreement around shared interests and objectives, particularly where regional aspects of climate change are at issue.

This paper examines the status of, and prospects for, climate-related efforts in a number of established multilateral regimes—specifically, the IMO, ICAO, the Montreal Protocol and CLRTAP. It focuses, in particular, on options to use these negotiating forums to limit emissions. In taking this focus, this paper does not address other important subjects, including (1) work related to adaptation; (2) the host of activities by sub-state actors, private groups, and public-private partnerships to address climate change; (3) the broader political discussions of the climate change issue in forums such as the U.N. Security Council, the G-20, the Major Economies Forum (MEF), and the U.N. Human Rights Council; and (4) the potential to address climate change through adjudication or other forms of dispute settlement.

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By Daniel Bodansky
August 2011

On December 31, 2012, the Kyoto Protocol’s first commitment period will expire. Unless states agree to a second commitment period, requiring a further round of emissions cuts, the Protocol will no longer impose any quantitative limits on states’ greenhouse gas emissions. Although, as a legal matter, the Protocol will continue in force, it will be a largely empty shell, doing little if anything to curb global warming.

This discussion paper analyzes the options going forward for the Kyoto Protocol, including adoption of a legally-binding second commitment period, a “political” second commitment period, or no new commitment period. It also considers the legal implications of a gap between the end of Kyoto’s first commitment period and the adoption of a new legal regime to limit emissions, the prospects for the Clean Development Mechanism in the absence of a second Kyoto commitment period, and the relationship between the Kyoto Protocol negotiations and the emerging regime under the Cancun Agreements.

Daniel Bodansky is Lincoln Professor of Law, Ethics and Sustainability, at Arizona State University's Sandra Day O’Connor College of Law. This paper is based on a presentation made to a workshop organized by the Pew Center on Global Climate Change in Konigswinter, Germany in June 2011. The paper is published in Viewpoints, a publication of the Harvard Project on Climate Agreements.

December 2010 By: Daniel Bodansky and Elliot Diringer Download this paper (pdf) Press Release Press Briefing Webcast Cancun Side Event

Introduction:

The 2009 Copenhagen climate summit may in retrospect prove a critical turning point in the evolution of the international climate change effort. For a decade and a half, the principal aim under the U.N. Framework Convention on Climate Change (UNFCCC) had been to establish, and then to extend, a legally-binding regime regulating greenhouse gas (GHG) emissions. Despite late efforts to temper hopes for Copenhagen, the general expectation was that the summit would carry forward this process by producing a legally-binding outcome. The result, instead, was the Copenhagen Accord, a non-binding agreement that captured political consensus on a number of core issues but in the end was not formally adopted by the official Conference of the Parties (COP).

Copenhagen’s “failure” has led many in and outside governments to begin rethinking the best way to mobilize an effective international response to climate change. To be certain, many parties remain fully committed to achieving new legally-binding commitments as quickly as possible; some are looking to do so at the 17th Conference of Parties (COP-17) to be held in 2011 in South Africa, or at Rio+20, the summit to be held in 2012 to commemorate the 20th anniversary of the Earth Summit in Rio de Janeiro. But many others are coming to believe that the path to a new legally-binding agreement will be longer and more incremental. In this view, the process of constructing a post-2012 international climate architecture will involve a gradual process of evolution.

An evolutionary path is, in fact, quite common in multilateral regime-building. While the progression of every regime is unique, reflecting its particular policy needs and political constraints, broad patterns can be seen. Few regimes spring forth wholly formed. Generally, they grow over time, becoming broader, deeper and more fully integrated as parties gain confidence in one another, and in the regime itself.

What a more incremental approach would imply in the case of climate change is not necessarily clear, however. Short of a legally-binding agreement, what types of international arrangements are most urgent or effective? Which of these can or should be pursued through the UNFCCC and which might be more productively pursued in other international forums? Is it critical that we know now the form of legally-binding agreement we aspire to—must it, for instance, include the Kyoto Protocol—or can that unfold over time?

This paper starts to explore these and related issues. It argues that a comprehensive and binding global agreement has strong virtues, and should be the ultimate goal, but that in working toward that end, parties should focus their efforts for now on concrete, incremental steps both within and outside the UNFCCC. The paper proceeds as follows: First, it examines why international regimes often evolve gradually over time, rather than emerging all at once. Next, it unpacks the various dimensions along which international regimes evolve. Then, it examines how the climate change regime has evolved to date. Finally, it outlines several different lines along which the climate change regime might evolve in the future.

Of course, an evolutionary process is by definition gradual and will take time. Given the urgency of addressing climate change, there is no guarantee that this process will reduce emissions quickly enough to avert catastrophic climate change. If a more rapid process were possible, it would be worth pursuing. The paper does not argue that an evolutionary approach is best; rather, it concludes that, at present, an evolutionary process is politically the most promising way forward.

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Towards an Integrated Multi-Track Climate Framework

Prepared for the Pew Center on Global Climate Change
December 2007

By:
Daniel Bodansky, University of Georgia School of Law
Elliot Diringer, Pew Center on Global Climate Change

Press Release

Introduction

With the approach of 2012, and the expiration of the initial greenhouse gas targets under the KyotoProtocol, governments are grappling with how best to advance the international climate effort in the years beyond. The central challenge is as clear as it is formidable: fashioning an international framework ensuring that all of the world’s major economies contribute equitably and effectively to the global climate effort. 

One way of characterizing the many different proposals put forward by governments, experts, and advocates is in terms of where they fall along a certain continuum: Towards one end are so-called “bottom-up” approaches, which envision the international effort as an aggregation of nationally defined programs put forward by countries on a strictly voluntary basis. At the other end are “top-down” approaches, in which governments negotiate explicit and binding international commitments that in turn shape and drive national policies.1   

This paper suggests a middle course, one that seeks to introduce “bottom-up” flexibility while retaining the cohesion and reciprocity of “top-down.” We call this an integrated multi-track approach.2 In this approach, all major economies enter into commitments aimed at reducing or moderating their greenhouse gas (GHG) emissions, but the type of commitment varies. For example, some countries have binding economy-wide emission targets, as under Kyoto, while others commit to implement national policies such as efficiency standards, renewable energy targets, or measures to reduce deforestation.3 Some, in addition, could participate in sectoral agreements on targets, standards, or other measures addressing emissions from particular sectors.4  

The broad contours of such an approach were outlined in the report of the Climate Dialogue at Pocantico, a group of policymakers and stakeholders from 15 countries convened by the Pew Center on Global Climate Change.5 In assessing a wide range of post-2012 options, the group concluded that the major economies, given their tremendous diversity, are more apt to engage in the international effort if given latitude to pursue different policy “tracks.” But the dialogue participants also concluded that the collective effort will be stronger if these multiple tracks are brought together in an overarching framework allowing coordination and tradeoffs among countries:  

[A] purely “bottom up” approach might produce only an ad hoc assemblage of disparate initiatives, with little certainty that the overall effort would be sufficiently timely or robust… Expressly linking approaches may allow for a more robust overall effort. In order for governments and for the private sector to undertake and sustain ambitious climate action, they must be confident that their counterparts are contributing their fair share. An integrated agreement could help provide this mutual assurance. By linking and negotiating across tracks, it may be possible to arrive at an arrangement that is at once flexible enough to accommodate different approaches, and reciprocal enough to achieve a higher overall level of effort.6

This paper elaborates on the rationale for an integrated multi-track approach; draws lessons from other multilateral regimes, including those addressing international trade and other transboundary environmental challenges; and identifies key issues in designing a multi-track climate framework. It assesses three models: an “individualized commitments” approach, which affords countries the greatest flexibility; a “parallel agreements” approach, which provides more structure and integration; and an “integrated commitments” approach, in which countries agree to negotiate within given tracks towards a comprehensive package agreement.

The paper concludes that of the three, the “integrated commitments” model is the one most likely to produce a collective level of effort sufficient to meeting the challenge of climate change. While still allowing countries the flexibility of different commitment types, this approach encourages stronger reciprocity and effort by establishing some agreement at the outset on commitment types, and to which countries they will apply, and by requiring that all tracks be agreed as one comprehensive package.  

There was consensus among the Pocantico dialogue participants—and there is now consensus among most, if not all, governments—that the appropriate venue for developing the post-2012 climate framework is the UN Framework Convention on Climate Change (UNFCCC). An integrated multi-track post-2012 agreement under the UNFCCC would likely include elements under the Convention, the Kyoto Protocol, and, potentially, under new protocols or other instruments. In the present negotiating context, the key to producing such an agreement is a new mandate for negotiations under the Convention—encompassing or linked to ongoing negotiations under Kyoto—with the aim of a comprehensive package of commitments for all major emitting countries.  

See Notes in full report to view references

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International Sectoral Agreements in a Post-2012 Climate Framework

Prepared for the Pew Center on Global Climate Change
May 2007

By:
Daniel Bodansky
University of Georgia, School of Law

In recent years, sectoral approaches have received renewed attention and are among the options proposed for the post-2012 period. In its report, International Climate Efforts Beyond 2012, the Climate Dialogue at Pocantico identified sectoral approaches as one of the potential elements of the future international climate change effort. This paper examines the broader policy and structural questions relating to the development of sectoral approaches at the international level—in particular, sectoral approaches taking the form of inter-governmental agreements.

Press Release

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Related Reading:

Background Note on Sectoral Approaches for a Post-2012 International Climate Framework
March 2008

This background paper helps clarify different types of sectoral approaches under discussion and how they might fit into a post-2012 international climate framework.

International Climate Efforts Beyond 2012: A Survey of Approaches

Prepared for the Pew Center on Global Climate Change
November 2004

By:
Daniel Bodansky, University of Georgia School of Law, with contributions from Sophie Chou, Christie Jorge-Tresolini, Pew Center on Global Climate Change

Press Release

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Beyond Kyoto: Advancing the International Effort Against Climate Change

Prepared for the Pew Center on Global Climate Change
December 2003

The report is a compilation of six "think pieces" on core issues in developing an effective international response to global climate change. Working drafts of the papers were the focus of workshops in China, Germany, and Mexico. More than 100 people from nearly three dozen developed and developing countries have contributed as authors, reviewers, or workshop participants.

Press Release

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Download the Overview (pdf)

Report Topics and Authors:

A Long-Term Target: Framing the Climate Effort (pdf)
Jonathan Pershing and Fernando Tudela

Climate Commitments: Assessing the Options (pdf)
Daniel Bodansky

Equity and Climate: In Principle and Practice (pdf)
John Ashton and Xueman Wang

Addressing Cost: The Political Economy of Climate Change (pdf)
Joseph E. Aldy, Richard Baron, and Laurence Tubiana

Development and Climate: Engaging Developing Countries (pdf)
Tom Heller and P.R. Shukla

Trade and Climate: Potential Conflict and Synergies (pdf)
Steve Charnovitz

Recent Remarks by Elliot Diringer (June 2004)

Download the Entire Report (ZIP file)

This working paper identifies potential scenarios for the linkage of U.S. and international climate strategies; describes how emerging national and international emissions trading regimes will shape the context within which such linkages could take place; and examines issues that must be considered in the design of a U.S. climate strategy to ensure its compatibility with an international regime.

Among the key findings:

The United States could, as a legal matter, decide to recognize Kyoto permits for purposes of compliance with U.S. emission reduction targets without needing the permission of the Kyoto Protocol parties (for example, via an amendment) and even if the two systems were not fully compatible.

Sales of non-Kyoto emissions permits to the Kyoto system would require an amendment to the Protocol, which parties would be unlikely to consider unless they believed that the U.S. and Kyoto trading systems were generally compatible.

In the long term, the more compatible U.S. and international climate policies are, the easier it will be to achieve convergence both politically and legally. Conversely, given the significant inertia in political and economic systems, the further U.S. and international climate policies travel down divergent roads, the more difficult it will be to bring them back together again in the future.

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by: Daniel Bodansky, University of Washington