The negotiations that would not die

by Dan Bodansky

In the early morning hours of Sunday morning (after two all-night negotiating sessions), climate negotiators at the Durban Conference reached a deal that some are already calling historic.  The decisions call for a new commitment period under the Kyoto Protocol together with the launching of a new round of negotiation (with the catchy title, “Durban Platform for Enhanced Action“)  aimed at reaching “a protocol, another legal instrument or an agreed outcome with legal force under the UN Framework Convention on Climate Change applicable to all Parties,” to be concluded no later than 2015.   Although the Durban Platform does not specify what types of commitments will be contained in the new instrument, the clear expectation is that it will include emission limitation commitments by those not covered by the Kyoto Protocol’s emission targets, including the United States, China and India.  The new protocol/instrument/outcome would thus expand the scope of the climate regime from the 15% of global emissions currently addressed through the Kyoto Protocol to all of the world’s major economies.

From the beginning, the main issue at Durban was whether the United States and the BASIC countries (Brazil, South Africa, India and China) would agree to a negotiating mandate sufficiently strong to enable the European Union to agree to an extension of the Kyoto Protocol.  Important issues included:

  • Legal form — Some countries were reportedly unwilling to accept a mandate to negotiate a “legally-binding agreement.”  (India was most clearly in this camp; the positions of the United States and China were less clear.)  Early texts proposed negotiating a “legal framework” or a “legal outcome,” but the European Union, small island states and least developed countries  (LDCs) saw these formulations as insufficiently strong, since they arguably might be satisfied by COP decisions.  The Durban Platform finessed this question with the formulation, “protocol, another legal instrument or agreed outcome with legal force.”  (The phrases “protocol” and “another legal instrument” are the terms used in the Berlin Mandate, which launched the Kyoto Protocol negotiations,” and the term “agreed outcome” is from the Bali Plan of Action, but now modified by the phrase “with legal force.”)
  • Time frame for the negotiations –  China reportedly wanted the negotiations to begin in 2016, after a review under the Cancun Agreements had been completed.  The European Union wanted the negotiations to begin immediately and to be concluded by 2015.  The Durban Platform follows the “EU roadmap” on this issue.
  • Time frame for the new instrument – The BASIC countries were reportedly willing to become part of a new agreement only starting in 2020 (and the United States was unwilling to accept an earlier start date for itself than for the BASIC countries), while the small island states and LDCs wanted the new agreement to be applicable as soon as possible.  The Durban Platform specifies that the instrument will “come into effect and be implemented” from 2020.
  • Negotiating forum – Rather than conduct the negotiations in the existing Ad Hoc Working Group on Long-term Collective Action (AWG-LCA) (created in 2007 by the Bali Roadmap), the Durban Platform establishes a new Ad Hoc Working Group on the Durban Platform on Enhanced Action.

As usual, on the issues about which there was no agreement (legal form and time frame), the lawyers in the negotiations played a crucial role in finding formulations that triangulated among the positions of the differing groups.

On the issue of differentiation, the Durban Platform represents a complete departure from the Berlin Mandate, which launched the Kyoto Protocol negotiations.  Not only does the Durban Platform affirmatively state that the new agreement will be “applicable to all” (in contrast to the Berlin Mandate, which explicitly excluded any new commitments for developing countries); in addition, the Durban Platform does not include any mention of the principle of “common but differentiated responsibilities and respective capabilities,” the principle of equity, the historical responsibility of developed countries, or the need for developed countries to take the lead in reducing emissions — the formulations previously used by developing countries to avoid taking emission limitation commitments.  Whether this represents a real change of heart or a tactical shift remains to be seen.  But nonetheless it suggests a very different framing of the new negotiations than the Kyoto Protocol.

In parallel with the Durban Platform decision, the Kyoto Protocol parties adopted a decision that sets the stage for the adoption next year of an amendment establishing a second commitment period under the Protocol, running from either 2013-2017 or 2013-2020.  The countries that will have emissions targets (a list that does not include Canada, Japan and Russia, which had previously announced that they would not participate in a KP second commitment period) are supposed to submit their “quantified emissions limitation and reduction objections” (i.e., their emissions targets) in the coming year, “with a view” to adopting an amendment at next year’s meeting.  The Kyoto Protocol outcomes also include a proposed amendment to add another gas (NF3) to the basket of gases addressed by Kyoto, as well as decisions dealing with land-use and forestry accounting and the Kyoto market mechanisms.  These decisions address the technical issues relating to a second commitment period, leaving only the emissions targets and time period for next year’s meeting.  To avoid any gap between the first and second commitment periods, the new commitment period will cover emissions from January 1, 2013 on, even though ratification and entry into force of the amendment will occur subsequently.

Finally, the Durban meeting tied up the two major “loose ends” from the Copenhagen/Cancun process.  First, it adopted the Governing Instrument for the new Green Climate Fund (GCF), which aims to mobilize $100 billion by 2020 for mitigation and adaptation.  The Governing Instrument establishes a Board consisting of 24 members, equally split between developed and developing countries, and designates the World Bank as the interim trustee of the fund for a period of three years.  A food fight is already emerging concerning the location of the new GCF secretariat, with many countries expressing interest.  Second, the Durban meeting adopted rules for international assessment and review (IAR) of developed country actions and international consultation and analysis (ICA) of developing country actions.  These transparency rules for developed and developing countries differ in their particulars, but both provide for review/analysis of national reports by technical experts, together with a more political  assessment/exchange of views by the parties.

Although the effectiveness of the UN climate change process in reducing emissions is subject to debate, the Durban outcome shows that the political momentum behind the process is not spent — at least to the extent that no one wants to be responsible for derailing it.

http://opiniojuris.org/2011/12/11/the-negotiations-that-would-not-die/

One Response

  1. Looked like a shameless punt to me, which is generally the last step before giving up entirely.

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