Despite high hopes the fifteenth Conference of the Parties at Copenhagen (COP15) did not result in a new international climate change treaty containing legally binding commitments to reduce emissions that would succeed the Kyoto Protocol.

The next Conference of the Parties at Cancun (COP16) begins 29 November 2010 after a year of interim negotiations. Although COP16 is not expected to result in a new international climate change treaty, it is hoped that COP16 will be a major milestone on the road from Copenhagen and that some of the disputes between the Parties can be settled, paving the way for a fully fledged climate treaty to be agreed at the Conference of the Parties due to be held in South Africa in December 2011 (COP17).

In this e-bulletin, we highlight the main issues, consider what can be achieved at COP16 and what the consequences of failure may be for the future of international climate change agreements.

The current legal architecture

The objective of the United Nations Framework Convention on Climate Change (UNFCCC) is the "stabilisation of greenhouse gases in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system".

Article 4(1)(b) of the UNFCCC sets out the commitment of each Party to:

"Formulate, implement, publish and regularly update national and, where appropriate, re-gional programmes containing measures to mitigate climate change by addressing anthro-pogenic emissions by sources and removals by sinks of all greenhouse gases …"

However, the UNFCCC also applies the principle of "common but differentiated responsibilities" for the Parties to achieve their commitments.

The Kyoto Protocol therefore sets specific binding GHG emission targets to be achieved in the 2008 – 2012 commitment period for developed countries. Developing countries did not make commitments to reduce or limit GHG emissions.

However, there is a growing recognition of the significant role that developing countries (particularly industrialised countries) play in determining the success of global climate change policies and "burden sharing" has become a key issue in the negotiations for a successor to the Kyoto Protocol. There are deep divisions between the Parties in relation to how best to strike a balance ensuring that funding is made available by developed countries and ensuring that developing countries are accountable for their emissions.

Principles in the Copenhagen Accord

Although not legally binding, in the Accord developed countries committed to strengthening the emissions cuts initiated under the Kyoto Protocol by implementing "quantified economy-wide emissions targets for 2020". These emissions reductions targets could be for individual States, or for groups of States (eg, by EU Member States). Under the Accord, the targets had to be notified by 31 January 2010.

The Accord also requires developing countries to implement mitigation actions, including submitting "Nationally Appropriate Mitigation Actions" or "NAMAs". The Accord sets out the principle that mitigation action undertaken by the very poorest countries is voluntary, and done on the basis that they will receive financial support.

In addition, the Accord encourages developed countries to jointly commit USD$100 billion a year by 2020 to address the needs of developing countries in respect of climate change. A significant proportion of this is intended to flow through the newly established Copenhagen Green Climate Fund which will be managed by the UN. Where developing countries seek international financing for their efforts, measuring, reporting and verification are to be performed every two years in accordance with international rules.

Key issues for Cancun

Following the adoption of the Accord, there have been a series of interim negotiations leading up to COP16. The mandate of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA) was extended and AWG-LCA has continued working towards a binding future climate treaty, focussing on areas that could be agreed upon at COP16.

Key issues include a shared vision for action, adaptation, finance, technology transfer, REDD+ (reduction of emissions from deforestation and degradation of forests) and emission reduction targets.

The output of the AWG-LCA will form the basis for negotiations with a view to settling disputes on those major issues during the course of COP16. The hope is that reaching agreement on these key issues will put the Parties in a position to agree a fully fledged climate treaty in the seventeenth Conference of the Parties at South Africa in 2011. If this seems likely following COP16, the "two track process" (which includes the work of AWG-LCA and a similar working group under the Kyoto Protocol) would likely have greater momentum going forward to achieve a fully termed draft agreement. COP16 may therefore be a key milestone on the road from Copenhagen towards a future climate treaty.

The UN process

The perceived weakness of the Copenhagen Accord has led some Parties to doubt the effectiveness of the UN process as a forum for future international climate change negotiations. Following COP15, a key US climate change negotiator, said "it is…impossible to imagine a negotiation of enormous complexity where you have a table of 192 countries involved in all the detail". Similar sentiments have been expressed by several other Parties and key figures.

COP16 could therefore also be a crossroad for international climate change negotiations. Whilst a positive and balanced outcome will help dispel the concerns that have been voiced about the effectiveness of the UN process, if negotiations at COP16 also fail to deliver meaningful progress, climate change negotiations could shift from occurring within the UN process towards smaller, directly negotiated multi-lateral environmental agreements between major emitters.