Question: I am concerned about this clause in the current draft of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP) and the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA).

The clause I am most concerned about tracking is the following:

In the AWG-KP Negotiating Text:

F. Implementation
13…Annex I Parties shall not resort to unilateral measures against imports from developing countries on the grounds of protection and stabilization of the climate. Such measures would violate the provisions and principles of the Convention, in particular the principles established by Article 3, paragraphs 1 and 5.]

Brackets had already been removed from this clause in the negotiating text for the Kyoto Protocol-based version of the Copenhagen treaty in November, which normally would signal that these words are in and that is settled.

Few clauses cause me more concern than this one. First, it guarantees that the treaty will fail to deliver any global GHG reductions. More importantly, this clause delivers massive economic benefit to China, India, the Persian Gulf, Nigeria, Mexico, the EU and US at the direct expense of Canada and Australia—the developed world’s leading fossil fuel, building-product and food exporters.

If we got everything else right in the Copenhagen agreement, Canada still could not sign it if this clause is maintained. The good news is that it is most likely that a World Trade Organization tribunal would have to uphold a Canadian challenge to any tariffs on our exports based on this clause—as well as any GHG tariffs that discriminate against products on the basis of how they are made (GHG intensity), as opposed to their content (fossil carbon content).

That is, as long as Canada neither: (1) signs a treaty that includes this language, or (2) agrees to cross-border trade in any form of GHG or carbon quota instrument.  

Please note that this clause graphically highlights the most significant difference between the Kyoto and draft Copenhagen treaties and the highly successful Montreal Protocol (to curb production and consumption of chemicals the release of which deplete the ozone layer, "ODSs").  

In the Montreal Protocol, developed nations committed to reduce the production and import (e.g. consumption) of substances the production or consumption of which resulted in the release of ozone-depleting substances to the atmosphere. Therefore, by definition, the developed nation export markets for developing nation-produced ODSs shrank at the same rate that domestic developed nation production of those substances shrank. Developing nations also committed to reduce production and imports over a schedule that started later and was longer in duration than the schedule for developed nations.

The known success of the Montreal Protocol combined with the UN’s continued incorporation of clause 13 in the AWG-KP text is a testament to the UN’s utter lack of true commitment to the stated environmental objectives of the Copenhagen process.