The Output of the Durban Climate Change Negotiations: A First Critical Approach

1. Introduction

The United Nations Durban Conference on climate change convened from 28 November to 11 December 2011. It involved a number of events, including the 17th Conference of the Parties (COP 17) to the United Nations Framework Convention on Climate Change (UNFCCC) and the 7th Conference of the Parties serving as the Meeting of Parties to the Kyoto Protocol (CMP 7). Apart from governmental officials, the Conference brought together a wide range of representatives from UN bodies and agencies, intergovernmental organizations and civil society organizations. Following Copenhagen (2009) and Cancun (2010), the Durban negotiations constitute the next crucial step taken by the international community towards addressing collectively and decisively the global warming problem. In light of the fast approaching expiration date of the Kyoto Protocol (31 December 2012) the cardinal objective of the Durban Conference was to further elaborate and enhance the institutional architecture of the post-2012 climate change regime.

2. The Road to Durban

International climate change negotiations constitute a complex and multifarious process involving a diverse array of parties with high sharing and conflicting interests at stake and encompassing evolving complex sets of cross-cutting and multidimensional issues. As a result, addressing effectively and meaningfully the climate change problem requires joint forces and the pursuit of global cooperative actions. In this context, the Copenhagen and the Cancun Conferences provided the platform for the resurgence of a new common approach to the management of the global warming issue and for the identification and exploitation of synergies for the mutual benefit of the parties to the climate change regime.

The negotiating process of the climate change regime has been evolved in parallel tracks. Initially, in 2005, the parties to the Kyoto Protocol established the so-called ”Ad hoc Working Group on Further Commitments for Annex I Parties” (AWG-KP)[1], aimed at negotiating the commitments of industrialized parties for the post-2012 regime. At a later phase, in 2007, at the Bali Conference (COP 13), the parties to the United Nations Framework Convention on Climate Change (UNFCCC) set up the ”Ad hoc Working Group on Long-term Cooperative Action” (AWG-LCA)[2] with the aim of engaging major emitters in the post-2012 climate change regime. Those involve USA, which is not included in the Kyoto track as it is not a party to the Protocol, as well as China and India which do not have national emission targets under the Kyoto Protocol.

In the course of the Durban negotiations, the key parties endeavoured to put forward their diverging positions regarding the future institutional architecture of the climate change regime. In particular, the coalition of developing states, the so-called G-77 /China, advocated the need for the continuation of the Kyoto Protocol with the establishment of a second commitment period with new emission targets for Annex I countries. In parallel, the G-77/China expressed their intention to participate in a new comprehensive agreement on the condition that the USA will also become a party to such an agreement. However, a fragmentation occurred within the G-77/China. The group of Least Developed Countries (LDCs) and the Alliance of the Small Island States (AOSIS) rallied behind the main position supported by the European Union according to which a new climate change agreement should comprise all major emitters, including USA and China. On the other hand, USA called for the development of a different policy and legal framework from that envisioned by the Kyoto Protocol, paying heed to the necessity for negotiating a new legally-binding agreement which would ensure legal symmetry to all major developing economies such as China and India[3].

3. The Durban Outcome

Despite the differentiated, and to some extent conflicting, interests emerged in the Durban negotiation process, it should not go unnoticed that the key parties finally reached common ground on a great deal of issues. First and foremost, the Conference of the Parties (COP 17) reached a package of decisions known as the Durban Platform. At the core of the Durban Platform lies the decision for the launching of a new negotiating process aimed at leading up to a new comprehensive climate change agreement in the form of ”a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties”[4]. For this purpose, it is provided that a new subsidiary body should be established under the UNFCCC to be known as the ”Ad hoc Working Group on Durban Platform for Enhanced Action”[5]. The ultimate objective of this Ad Hoc Working Group, mandated to complete its work no later than 2015, is to contribute to the adoption of a new agreement which should come into force and be implemented from 2020.[6]

Approaching now critically the core decision of the Durban Platform, we should focus our remarks on two aspects of its negotiated outcomes, distinguishing between more constructive and greyer areas. Thus, on the one hand, it would not be an exaggeration to say that the main outcome of the Durban Conference represents a real breakthrough for the evolution of the climate change regime: for the first time in the history of the climate change negotiations, all the parties, including the major emitters, such as USA, China, India, subscribed to the perspective of a new legally-binding instrument. At this point, it is worth mentioning that this decision constitutes a victory for the ”Coalition of the Willing” built by the European Union, AOSIS, least-developed countries and two major developing countries from the BASIC bloc (Brazil and South Africa) which, from the start of the negotiation, were strong proponents of the formation of a new legal agreement. Additionally, the Durban Platform introduces an institutional novelty crumbling the established by the UNFCCC regime distinction between Annex I and non-Annex I countries (industrialized and developing contracting parties). In this sense, it is remarkable that the Durban Platform not only defines that the new agreement should be ”applicable to all parties”, but also makes no references to core principles of the UNFCCC (such as the ”Common but Differentiated Responsibility” or ‘‘Distributional Equity”). In parallel, a set of formulations found in a series of legal and political texts (such as UNFCCC, Kyoto Protocol, Bali Action Plan, Cancun Agreements) and used in the past by developing countries in an attempt to build their argument against undertaking legally-binding emission limitation targets, were also eliminated[7].

At the other end of the spectrum, it seems reasonable to assume that some aspects of the Durban Platform remain unclarified and obscure. More specifically, it could be the option agreement (Protocol or not). This is exemplified by the fact that main negotiating parties had difficulties in finding a common language formulation determining the future legal instrument. For instance, India rejected the language used in the proposed drafting text and added to the phrase ”a protocol or another legal instrument” the option ”a legal outcome”. This option was not accepted by the ”Coalition of the Willing”, arguing that ”a legal outcome” does not imply a legally binding agreement[8]. As a compromise solution, the Contracting Parties eventually accepted the somewhat general and vague term ”an agreed outcome with legal force”, which may also be subject to various interpretations.

In a similar vein, although the main elements of the future legal instrument are to be elaborated in the course of the upcoming Conferences of the Parties sessions, it should not go unnoticed that the parties to the Durban negotiations did not engage in a first general discussion on the substance (possible underlying principles, measures and commitments to be stipulated in the new agreement). It is believed that such a discussion, at this stage, could be instrumental in generating, at least, a first impression as to the orientation, prevailing scope and possible substantive elements of the new agreement.

Apart from the Durban Platform, the Durban Conference negotiations also culminated in the establishment of a second commitment period under the Kyoto Protocol to run from either 2013-2017 or 2013-2020[9]. This accomplishment was the result of a last-minute compromise achieved among the key Contracting Parties to the Kyoto Protocol. In this context, the European Union expressed its willingness to accept a post-2012 commitment phase under the Kyoto Protocol on the condition that the new future agreement would include all the major emitters. There is no doubt that the achieved expansion of the Kyoto Protocol can be considered as significant. However, it is believed that the international community should take further steps towards the improvement of the effectiveness of the second commitment period under the Kyoto Protocol, since to date the Kyoto Protocol is regarded as a legal instrument with limited comprehensiveness and coherence[10]. This is exemplified by the fact that its legally-binding commitments only concern a limited number of countries (the Annex I Parties).

Finally, the Durban Conference touched upon a number of other special issues, most prominent among them being those concerning the financial institutional arrangement of the post-2012 regime[11]. In particular, the Conference of the Parties (COP 17) gave its green light to the operationalization of the Green Climate Fund, being the key vehicle for the post-2012 climate financing and support for developing and least developed countries[12].

An Epilogue

It goes without saying that the Durban Conference is an important step towards the further enhancement and refinement of the climate change regime. There is no exaggeration to claim that the Durban Platform decision package provides new impetus for the inauguration of a new era in the climate change negotiations. The launch of a new round of consultations for the crafting of a new agreement covering all the major emitters, along with the blurring of the long established differentiation between two group of states (Annex I/non-Annex I), clearly constitute a decisive turning point in the UNFCCC process. However, the international community will be able to reap the benefits of the Durban Conference, if it will continue to build upon decisive and coordinating global actions with a view to promote the adoption of a meaningful regulatory and institutional framework for climate change. In the final analysis, international negotiations should be always viewed as an ongoing and evolving process of building a consensual order of international common interest and which bears fruits in the long run[13]. In this context, the output of the Durban negotiations should be evaluated in correlation with the results of the upcoming climate change negotiating processes.

Endnotes

1. See, Decision 1/CMP.1 (FCCC/KP/CMP/2005/8/Add.1), Consideration of commitments for subsequent periods for Parties included in Annex I to the Convention under Article 3, paragraph 9, of the Kyoto Protocol, 30 March 2006.
2. See, Decision 1/CP.13 (FCCC/CP/2007/6/Add.1), Bali Action Plan, 14 March 2008.
3. For more details concerning the positions of the key major parties, see, Bodansky, D., W(h)ither the Kyoto Protocol? Durban and Beyond, Harvard Project on Climate Agreements, August 2011, available at: http://belfercenter.ksg.harvard.edu/publication/21314/whither_the_kyoto_protocol_durban_and_be yond.html. Also, Sterk, W. et al, On the Road again. Progressive Countries score a Realpolitik Victory in Durban while the Real Climate continues to Heat up, Wuppertal Institute for Climate, Environment and Energy, December 2011, pp. 5-9.
4. See, Draft Decision [-/CP.17] (FCCC/CP/2011/L.10), Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, 10 December 2011.
5. Ibid.
6. In addition, the mandate of the already existing ”Ad hoc Working Group on Long-term Cooperative Action” (AWG-LCA) was expanded for one more year. See, Draft Decision [-/CP.17] (FCCC/CP/2011/L.10), Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, 10 December 2011.
7. See, Bodansky, D., The Negotiations that would not Die, Opinio Juris, 11 December 2012, available at: http://opiniojuris.org/2011/12/11/the-negotiations-that-would-not-die/.
8. See, Sterk, W. et al. (2011), op.cit., pp. 7-8. Also, IISD Summary of the Durban Climate Change Conference, Earth Negotiations Bulletin, Vol. 12, No. 534, 13/12/2011, available at: http://www.iisd.ca/vol12/enb12534e.html .
9. See, Draft Decision -/ CMP. 7 (FCCC/KP/AWG/2011/L.3/Add.1), Outcome of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its sixteenth session, 10 December 2011.
10. See, Aldy, J. E., Stavins, R. (eds), Architectures for Agreement. Addressing Global Climate Change in the Post-Kyoto World, Cambridge University Press, Cambridge, 2009, p. 12. It is worth noting that the withdrawal of Canada from the Kyoto Protocol, a few days after the Durban Conference, could be considered as a move which may further contribute to the weakness and incoherence of the Kyoto Protocol.
11. The Durban Conference also discussed issues pertaining to the technology transfer and capacity-building, adaptation and response measures, research cooperation and forest programme (REDD+).
12. See, Draft Decision [-/CP.17] (FCCC/CP/2011/L.9), Green Climate Fund – report of the Transitional Committee, 10 December 2011.
13. See, Raftopoulos E., ”International Environmental Negotiation as a Governance Process”, in Contributions to International Environmental Negotiation in the Mediterranean Context (Raftopoulos, E.and McConnell, M. eds), Sakkoulas–Bruylant, 2004, pp. 1-64.

About the author

Erifyli Paspati

Ph.D Candidate, EKEPEK Researcher, Panteion University of Athens, Greece

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