Political landscape of the negotiations

Before turning to the thematic analysis of the development of the compliance system, it is important to briefly sketch the political landscape surrounding the system's negotiation. The Protocol's political contours closely follow the shape of the Protocol's commitments. The first feature is the boundary between North and South; the industrialized countries contained in Annex I of the UNFCCC will have legally binding and quantified commitments under the Kyoto Protocol, while developing countries will not. Within Annex I, the emissions caps agreed for industrialized countries varied, and were expected to require very different levels of compliance effort. This is particularly the case along East-West boundaries, as many of the economies in transition from Eastern Europe and the former Soviet Union were assigned emission caps higher than what they are likely to need to meet their domestic requirements. But, as will be seen, attitudes towards non-compliance also varied among the wealthier industrialized countries, with sharp differences of view emerging on certain issues between the European Union,9 and a number of groupings in the loosely-organized remainder of Annex I, known as the JUSCANZ and the Umbrella groups.10

Among the non-Annex I developing countries, interests in and attitudes towards compliance with Annex I's Kyoto targets varied as well. Generally, the developing countries negotiated as a bloc through their traditional caucus, the Group of 77 and China.11 Their main common concern was to develop a compliance system that reflected the same 'common but differentiated' design as the Protocol's targets.12 Larger developing countries, such as Brazil, India and China, were also concerned with the potential application of the compliance system to them, as the Protocol may evolve to include targets and timetables for non-Annex I countries. Smaller countries vulnerable to the potential impacts of climate change and broadly represented by the Alliance of Small Island States (AOSIS)13 were primarily concerned about the effectiveness and enforcement powers of a compliance system. Countries dependent on the production and export of fossil fuels were concerned that a truly effective compliance system might move too many countries too quickly towards less carbonintensive alternatives.14

One of the most significant political developments outside the climate change negotiations was the election to the presidency of the US, immediately following COP-6, part 1, of George W. Bush. A few months before COP-6, part 2, President Bush announced that his administration viewed the Kyoto Protocol as being 'fatally flawed in fundamental ways' and expressed its 'unwillingness to embrace' the treaty.15 The US withdrawal from the Kyoto Protocol added momentum to the Bonn negotiations, particularly in areas where the US views had represented a stubborn and powerful minority. Some delegations were also likely driven by a desire to show the US that the international community was capable of finishing its work and of demonstrating its continued support for the Protocol without US involvement.

However, the withdrawal of the US from the negotiations did not have a major impact on the outcome of the compliance system. As will be seen, since Kyoto the US had consistently supported a strong compliance system and, with one important exception (the composition of the Enforcement Branch), many of the elements adopted at Marrakesh had either derived from US submissions or were supported by the US delegation at some point in the negotiations.16

While much of the final design of the compliance system can be explained by contributions and trade-offs between political groupings, significant credit for the shape of the final package must be given to various individuals who chaired or steered the process.17 The topic had the potential to become politically-charged, but up until the last few sessions of the JWG, the discussions maintained an analytical, at times almost academic atmosphere. The JWG invited presentations from academic institutions, NGOs and the secretariats of other institutions with non-compliance and dispute settlement mechanisms. The JWG was also aided by the consistent participation of a significant core group of individual delegates who provided institutional memory and a momentum behind the process. This atmosphere of trust allowed the JWG co-chairs to make a number of significant consolidations and advances in the development of the text.18

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