Perspectives
Wednesday, 15 February 2012 13:48

Climate Change Convention (Durban) – Outcomes

Andrew Gilder, IMBEWU Sustainability Legal Specialists (Pty) Ltd.

The writing of this article engendered a distinct sense of déjà vu in that I felt impelled to commence with “one’s opinion of whether the outcome of the Durban Climate Change Conference was positive or not depends very largely on one’s initial viewpoint” of the value of value of climate negotiations.

The déjà vu arises from the fact this is precisely what one may have written at the conclusion of the three previous annual meetings. There is even a view from some quarters that the much-lamented result of the gathering, in December 2009, in Copenhagen (Denmark), is not an iniquitous as it often portrayed, particularly given (so the argument goes) that the political cachet of the Copenhagen Accord clearly influenced the form and content of the subsequent Cancun Agreements and, now, the Durban Platform for Enhanced Action. At least one wag has commented that the climate change negotiations are likely to be waiting on this “platform” for some years to come. In my view the outcome of the Seventeenth Conference of the Parties (COP17) to the United Nations Framework Convention on Climate Change (UNFCCC) and the Seventh Meeting of the Parties to the Kyoto Protocol (MOP7), held in Durban in November and December 2011, treads a very Buddhist-like middle path. This article will try and give a sense of this “centred” position and its implications for South Africa, but is not intended as an exhaustive analysis of COP17/MOP7.

COP17 exhibition area

climate_change_convention

Key decisions

Durban Platform for Enhanced Action: Two ad hoc working groups have been the main arena for the climate change negotiations in recent years and Durban saw the establishment of a third, namely the new Ad Hoc Working Group on the Durban Platform for Enhanced Action. To some degree the decision on the new Working Group answers the much-debated (in recent years) question of the architecture of a future climate treaty. The agreement is to “launch a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the United Nations Framework Convention on Climate Change applicable to all Parties, through a subsidiary body under the Convention hereby established and to be known as the Ad Hoc Working Group on the Durban Platform for Enhanced Action”. The work under the Durban Platform is to be concluded by no later than 2012 in order for the protocol, other legal instrument or agreed outcome with legal force to come into effect and be implemented from 2020. Two important factors are evident from the above quotation. Firstly, the future agreement will take some sort of legal form (“protocol, another legal instrument or an agreed outcome with legal force”); and, secondly the agreement will apply to all country Parties. Bear in mind that one of the stickiest issues in the current negotiations is the notion, expressed by the developed world, that the Kyoto Protocol does not impose mitigation obligations on the developing world. While this arrangement may have been appropriate when Kyoto was originally agreed, in 1997, the argument is that global realities are significantly changed in this second decade of the twenty-first century – the most important difference being that the largest emitter in the world is a developing country, namely China, whereas in 1997 the United States wore this mantle. Perhaps the most obvious conclusion that can be drawn on COP17 is that, in spite of the dire scientific warnings that we need to deal swiftly and efficiently with the climate change challenge, the world has agreed to park implementation of a new climate deal until the end of the present decade.  

Kyoto Second Commitment Period (KP2): With the looming conclusion of the first Kyoto period, at the end of 2012, and given that agreement on a KP2 was never a foregone conclusion, it was to the general relief of negotiation-watchers that KP2 was confirmed as beginning on 1 January 2013 with a view to ending on, either, 31 December 2017 or 31 December 2020, to be decided during the course of 2012. The handicap on the new period is that, whereas developed country Parties agreed to firm quantified emissions reduction or reduction obligations (QELROs) for the first Kyoto period, the agreement on KP2 is only able to “take note of” the economy-wide emissions reduction targets submitted by country Parties to the Convention secretariat, and of the intention of such Parties to convert these targets to QELROs for the purposes of KP2. Country Parties have been invited to submit information on their QELROs for KP2 by 1 May 2012.

Nationally appropriate mitigation actions (NAMAs) by developing country Parties: The NAMA is the route, for developing countries, towards taking on some form a commitment to reduce their greenhouse gas emissions. The Durban decision on NAMAs takes this idea (which arose in the Bali Action Plan) forward to a functional level by providing for information-gathering exercises and the elaboration of low-emission development strategies, where this may be necessary. South Africa has been at the forefront of discussions on NAMAs and has already taken various steps towards defining this country’s contribution. The Integrated Resources Plan 2010 and the National Climate Change Response White Paper (2011) are replete with initiatives that are likely to labelled South Africa’s NAMAs.

Green Climate Fund: With finance always a fraught issue in the negotiations, the approval of the governing instrument for the Green Climate Fund is an important achievement. The Fund has been designated as operating entity of the Financial Mechanism of the Convention and arrangements will be concluded at COP18 to ensure that the Fund is accountable to and functions under the guidance of the Conference of the Parties to support projects, programmes, policies and other activities in developing country Parties. The downside is that capitalising the Fund has been less successful and the ambition, flowing from the Cancun Agreements, of “fast-start” finance of thirty billion US dollars between 2010 and 2012 looks unlikely to be realised.

From the perspective of climate change science, praise for the Durban outcome tends to be less effusive than that coming from the politicians and lawyers. One author   has commented that despite “…the celebratory atmosphere, the (Durban) Platform represents an exercise in legalese that does little or nothing to reduce emissions, and defers action for almost a decade. The stated goal of the talks was to limit global warming to 2?°C, although many developing nations and small-island states have advocated a target of 1.5?°C”. The latest analysis of current emissions reductions pledges suggests that the world is on course to see 3.5?°C of warming this century.
(Note to editor: the graphic below is available from the weblink provided. It would be useful to be able to include the graphic and I leave it to you to decide on the inclusion or not).

The next round of negotiations will commence in April this year. Their focus will be to put flesh on the skeleton of the Durban Platform. There is a large body of opinion that these efforts are too-little-too-late to avert disastrous climate change and that the global community has no choice anymore but to turn its attention to preparing for the inevitable. Against the background of this pessimism (some would label it “realism”) the unilateral negotiation process must be pursued, if only as a means to secure mechanisms for dealing with our currently uncertain future.

IMBEWU Sustainability Legal Specialists (www.imbewu.co.za) is a specialist sustainability legal consultancy providing professional legal consultancy services in the area of environmental, health & safety and climate change law. IMBEWU runs a Climate Change and CDM Specialist Consultancy Unit with the greatest depth of expertise and experience in the South African carbon market. IMBEWU collaborates with Warburton Attorneys (www.warburtons.co.za) in providing CDM project development and contract advice to clients. This article should not be regarded a comprehensive discussion of the topics addressed, and should not be taken as legal advice or relied upon. Those seeking to participate in climate change-related activities are advised to seek specific legal advice. Contact: This email address is being protected from spambots. You need JavaScript enabled to view it..

Notes:
Notwithstanding the apparent legal commitment made in respect of the Durban Platform, at least one commentator has drawn the distinction between the Durban outcome and previous agreements. The following is the view of Prof. Dan Bodansky (a respected legal academic): “The Durban Platform is also pretty thin gruel as a negotiating mandate. In terms of its actual language, it is arguably weaker than the 1990 UN General Assembly Resolution (http://www.un.org/documents/ga/res/45/a45r212.htm) that initiated the UN climate change negotiations and led to the development of the UN Framework Convention on Climate Change. The 1990 UN General Assembly resolution called clearly for the negotiation of a “convention” (albeit a “framework” agreement) “containing appropriate commitments.” In contrast, the Durban meeting was unable to agree on a mandate to negotiate a legal agreement and contains no language about commitments. The Durban platform could be satisfied by an “outcome with legal force” — a formulation that as far as I am aware does not have any precedent in international law. Arguably, “legal force” means the same thing as “legally-binding,” and the addition of “with legal force” to “agreed outcome” (the Bali Action Plan language) means that the outcome is something more than what Bali contemplated (which included COP decisions). But the inability to reach agreement on “legally-binding” suggests that at least some parties thought “legal force” might mean something less. Dan Bodansky, “Evaluating Durban”, Opinio Juris, 12 December 2012, http://www.c2es.org/print/blog/bodanskyd/evaluating-durban. It is interesting to note that the agreed which gave rise to the Kyoto Protocol called for the negotiation of a “protocol” as a means of building on the foundation established by the Framework Convention.

Jeff Tollefson, “Durban maps path to climate treaty”, Reuters, 13 December 2011, http://www.nature.com/news/durban-maps-path-to-climate-treaty-1.9635