Global Climate Talks Face Tough Legal Questions
1 February 2012
Whether last year’s U.N. climate conference in Durban delivered a breakthrough in the international community's response to climate change or kick-started a new clash of paradigms will be debated for the next couple of years.
From the perspective of the world’s 48 Least Developed Countries (LDCs), the negotiations succeeded in advancing the various existing accords and protocols in a fairly balanced fashion, although at times, verbal swords were certainly crossed.
Most importantly, a decision was reached by 195 states to adopt a universal legal agreement on climate change as soon as possible, and no later than 2015. This last-minute deal, sealed in a fraught extension to the conference, saw all countries commit to work towards legally binding emissions reductions due to be implemented from 2020.
The gathering was also successful in saving the Kyoto Protocol - the only legally binding arrangement that applies to developed countries - with Europe and a few others signalling commitment to a second round of pledges after 2012.
And there was progress was on the 2010 “Cancún decisions”: the Green Climate Fund was set up along with initial pledges; a process for LDCs’ national adaptation plans was made concrete; a committee was established to help vulnerable nations adapt to climate change; and the terms of reference were agreed for a technology centre and network that will help transfer technology to developing countries.
These decisions are a major feat, considering the stalemate between countries in the final days of the Durban conference.
The main outcome was the launching of a new round of negotiations known as the Durban Platform, aimed at building a new emissions reduction regime under the U.N. Framework Convention on Climate Change (UNFCCC) and involving all countries. Governments now have to decide exactly what form it will take.
FRESH DISCORD AHEAD?
Given the difficult circumstances in which the Durban Platform was launched, talks on the framework to underpin the new regime can be expected to be tough and lengthy.
In essence, the biggest polluters have three options for a wider agreement by 2015 - setting the stage for renewed discord between rich and poor countries.
Ministers and negotiators agreed on Dec. 11, 2011 to spend up to four years drafting a “protocol, legal instrument or an agreed outcome with legal force” to take effect by 2020.
While the European Union wants a treaty to limit fossil-fuel emissions in all countries, two of the world’s three biggest polluters, China and India, have signalled they expect to be assigned looser limits in the final accord.
The phrase “agreed outcome with legal force” is new and has some degree of ambiguity. That is worrying as negotiations failed in Copenhagen in 2009 after the United States, China, India and the EU got bogged down in divisions over a new treaty’s legal form.
At Durban, Indian Environment Minister Jayanthi Natarajan had earlier fought to add “legal outcome” as an alternative to a possible new “protocol” or “legal instrument” to cut global greenhouse gases. But the EU, which arrived in Durban pushing for a new legally binding climate treaty involving all nations by 2015, rejected India’s language as too weak.
Chinese Minister Xie Zhenhua earlier spoke in Durban about taking on mandatory targets only after 2020, and only if certain conditions are met. Like India, it would have preferred voluntary measures.
As pressure for a deal was ratcheted up by Bangladesh and Gambia for the LDCs, Grenada for small-island developing states, Congo for Africa and other developing countries supported by Sweden, Denmark, Australia and Britain, the ministers of India, China and the EU agreed to replace “legal outcome” with “agreed outcome with legal force”.
‘TECHNICAL VARIATIONS ON THE THEME’
Washington - which won’t support a new treaty unless China and India are held as accountable for their actions as industrialised countries - helped come up with the language aimed at mollifying both sides.
“‘Legal outcome’ is something India wanted a lot,” the lead U.S. climate envoy, Todd Stern, told reporters after the meeting in Durban. “It’s just a little vaguer, a little less certain what that might be. There’s more ambiguity.”
The United States, EU and others wanted something with a “little more legal certainty to it”, he said. “The phrase ‘an agreed outcome with legal force’ just sounded a little meatier than a ‘legal outcome’; nothing more scientific than that,” he added.
Stern said that while there are “technical variations on the theme,” he believes all nations understand “we’re talking about a legal agreement of some sort or another”.
There was no reference in the Durban text to the principles of equity or “common but differentiated responsibilities” (CBDR), so prominent in previous such resolutions. The United States was especially insistent they should not be included.
CBDR places a heavier burden on rich nations for reducing pollution than poorer nations, who have historically been less responsible for the emissions that are changing the planet's climate.
Those who have been in the climate negotiation process for a long time know that any protocol, legal instrument or agreed outcome with legal force under the UNFCCC must be consistent with its existing principles and provisions, and therefore equity and CBDR should be assumed to apply. But this view may be challenged when talks start in the run-up to the next annual summit in Doha in November.
As a lead negotiator for the LDCs, I don’t think Durban was a debacle, even though decisions were watered down, and we have a lot of work to do to keep up the momentum.
Building on the experience and lessons learned in South Africa, the LDCs, including Bangladesh and Gambia, should prepare for Doha by further consolidating their knowledge base of climate diplomacy with more intensive homework and solid preparations.
LDC teams should start their work without delay. They should prepare a roadmap for Doha and beyond, since global climate negotiations are about to take a new turn and the people of these vulnerable countries, including Bangladesh, have a serious stake in what they yield.
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