Daniel Bodansky (Arizona State University Sandra Day O'Connor College of Law) has posted A Tale of Two Architectures: The Once and Future U.N. Climate Change Regime on SSRN. Here is the abstract:
International agreements vary widely in the latitude that they give participating states. Some take a top-down approach, defining particular policies and measures that parties must undertake. Others adopt a more bottom-up approach, allowing each participating state to define its own commitments unilaterally. In the climate change regime, the Kyoto Protocol reflects a top-down approach. Although it gives states freedom in how they implement their commitments, it does not give them similar flexibility in defining the form, nature and content of their commitments. Going forward, the climate change regime faces a choice: continue down the road blazed by Kyoto, or shift to a more bottom-up architecture, focusing on nationally-defined measures. Although the Copenhagen Accord and Cancun Agreements in theory leave this question open, they embrace a bottom-up approach, allowing countries to make national pledges unilaterally. The paper argues that this bottom-up, incremental approach makes sense politically, in order to provide time for countries to learn from experience and to develop trust in the system. Although it is unlikely, in itself, to produce the necessary level of emissions cuts, it represents a useful step forward, by unblocking an apparently stalemated process and by helping to build a foundation for stronger action in the future.