Unconstructive Ambiguity in the Durban Climate Deal of COP 17 / CMP 7

Author:Remi Moncel
Position:Associate in the Climate and Energy Program at the World Resources Institute ('WRI'), a global environmental think tank
Pages:6-11
 
CONTENT
6SUSTAINABLE DEVELOPMENT LAW & POLICY
UNCONSTRUCTIVE AMBIGUITY IN THE DURBAN
CLIMATE DEAL OF COP 17 / CMP 7
by Remi Moncel*
INTRODUCTION
“The Durban conference in December 2011 marked
a breakthrough in international efforts to combat climate
change.”1 It is in these terms that the European Commission
(“EU”) Commissioner Connie Hedegaard described the 17th
Conference of the Parties (“COP 17”) to the United Framework
Convention on Climate Change (“UNFCCC” or “Convention”)
and the seventh meeting of the Conference of the Parties serving
as the Meeting of the Parties to the Kyoto Protocol (“CMP 7”),
which took place this past winter in South Africa.2
In Durban, governments agreed to a package composed of
three main elements: 1) a continuation of the Kyoto Protocol
with a second round of quantified mitigation commitments to
be defined for a subset of Annex I countries;3 2) operational
decisions implementing the 2010 Cancun Agreements;4 and
3) the launch of a process for a new international agreement
by 2015 applicable to all Parties.5 The Durban Package is the
latest development in the climate regime: the constellation of
international, national and sub-national institutions and actors
with capacity, expertise and authority to address climate change.
While some commentators expressed skepticism on this out-
come,6 the dominant view appears to be one of cautious – and at
times enthusiastic – optimism, similar to the opinion expressed
by Commissioner Hedegaard.7
However, several fundamental political and technical ques-
tions were left unanswered in Durban.8 Because of disagreements,
negotiators delayed decisions or used ambiguous wording to
express political will.9 Chief among these ambiguous phrases is
“agreed outcome with legal force,” a phrase that seemed to serve
as a compromise for the legal form of a future climate agree-
ment during the final hours of the talks.10 This article examines
this emblematic formulation and other important considerations
beyond legal form that were left unanswered or ambiguous.
Scholars have argued that regimes can evolve gradually
and that small steps can have significant effects over time.11
Borrowing the approach former U.S. Secretary of State Henry
Kissinger, compromises on language may be a manifestation of
“constructive ambiguity”12 that would allow the climate regime
to grow stronger incrementally.13 While recognizing the benefits
of an incremental approach, it is worth considering what growth
is sufficient for the climate regime to be effective and whether
such a threshold was secured in Durban. There is a risk that
the Durban outcome in fact yielded unconstructive ambiguity
in the sense that, by avoiding difficult, time-sensitive political
questions today, negotiators may have missed the narrow win-
dow of opportunity that science suggests remains for limiting a
rise in global average temperature to two degrees Celsius above
pre-industrial levels.14 Thus, governments’ ambiguity may have
de facto, and perhaps inadvertently, locked the world into a high
emissions trajectory.
In that context, the purpose of this article is to evaluate the
Durban outcome in terms of its ability to set the climate change
regime on a path to limit the global average temperature rise to
two degrees Celsius above pre-industrial levels.15 Comprehensive
descriptions of the outcome of the conference have been written
elsewhere. Instead, this article focuses on some of the most
central provisions of a Durban-created future international cli-
mate agreement intended to facilitate international cooperation
in meeting scientifically driven mitigation goals.16 Specifically,
a review of key agreement provisions finds that, while it is pre-
mature to cast a definitive judgment on the success of the Durban
conference, the adequacy of a global response to climate change
remains unclear and presents cause for concern.
The article assesses three of the key issues under negotiation
in Durban as an illustration of the phenomenon of unconstructive
ambiguity: the legal form of a future agreement; national and
global mitigation commitments; and equity. In the conclusion, the
possible causes and implications of this outcome are discussed.
THE LEGAL FORM OF A
FUTURE CLIMATE AGREEMENT
The question of the legal form for a future climate agree-
ment to complement or replace the Kyoto Protocol was central
in the Durban negotiations in 2011.17 Views diverge among
scholars and advocates on whether voluntary or legally binding
commitments lead to greater ambition and implementation of
international commitments to reduce greenhouse gas (“GHG”)
emissions by national governments.18 The benefits of a legally-
binding international agreement may include greater legal
certainty, increased incentives for domestic implementation and
compliance, opportunities for legal challenges, and additional
leverage for civil society to hold their governments account-
able.19 By contrast, others argue that a voluntary framework
would lead to greater participation and more ambitious goals.20
*Remi Moncel is an Associate in the Climate and Energy Program at the World
Resources Institute (“WRI”), a global environmental think tank. An expert on
international climate policy, his work examines the role of various institutions
and processes within and outside the UNFCCC in promoting collective action
on climate change and effective policy implementation. This article reflects
the views of the author alone and not those of WRI. The author is grateful to
Paul Joffe, Kelly Levin and Jennifer Morgan for their helpful comments on
earlier drafts.
7WINTER 2012
In some ways, the Durban conference defied the odds with
a decision that signals a move towards a “top-down”21 climate
regime after many had assumed that the regime would take a
“bottom-up” form in the aftermath of the Copenhagen Accord22
and the Cancun Agreements.23 Several elements of the Durban
outcome suggest a possible shift towards a more inclusive mul-
tilateral legal framework. However, ambiguous compromises in
Durban limit the ability to know with certainty the structure of
the future climate regime.
A REINVESTMENT IN MULTILATERALISM
The Durban Package24 included an agreement to continue
the Kyoto Protocol after its first commitment period, which ends
in 2012.25 The EU has agreed to a second commitment period.26
Although the end date of this second commitment period remains
to be negotiated,27 a new set of mitigation commitments by the
EU, and possibly other developed countries such as Norway,
Switzerland, Australia and New Zealand, will begin on January
1, 2013.28 Beyond 2012, however, critics correctly point out that,
given the absence of involvement in this process from other devel-
oped countries like the United States, Canada, Russia, and Japan,
and quantified commitments from developing countries, the Kyoto
Protocol will only include commitments from countries repre-
senting at most fifteen to sixteen percent of global greenhouse
gas emissions,29 and is therefore inadequate.30 However, there
are several benefits to the continuation of the Kyoto Protocol. It
preserves certain multilateral rules and institutions that can serve
as models for the new climate agreement proposed for adoption
by 2015, such as accounting rules, a compliance mechanism,
emissions trading systems, and the Adaptation Fund.31 Secondly,
the EU restored some of the trust lost among countries by fulfill-
ing a major demand of developing countries: the continuation of
the Kyoto Protocol as a necessary condition for enhanced global
action in any post-2012 climate regime.32
COP 17 also established the Ad-Hoc Working Group on the
Durban Platform for Enhanced Action (“AWG-DPEA”) with a
view toward developing “a protocol, another legal instrument,
or an agreed outcome with legal force under the UNFCCC
applicable to all Parties.”33 This agreement is planned to be
negotiated over the coming three years, to be adopted at COP
21 in 2015, and to “come into effect and be implemented from
2020.”34 The agreement’s significance should not be underes-
timated. Although several countries in the months and years
preceding COP 17 had expressed a desire to establish a single
legal agreement applicable to all countries,35 many developing
countries maintained that the principle of common but differ-
entiated responsibilities and respective capabilities required that
developed countries be legally bound to reduce emissions under
the Kyoto Protocol or an equivalent legal instrument that did not
include similar commitments from developing countries.36 Other
countries, particularly the U.S., argued throughout 2011, and
until the end of the conference, that the politics were not right
for adopting such a roadmap.37 The wording of Paragraph 2 of
the decision establishing the Durban Platform creates a window
of opportunity in 2015 to adopt a legally binding instrument,
such as new protocol under the Convention or an amendment
to the Convention.38 In fact, several developed and developing
countries, as well as observers, interpret the Durban outcome as
presaging a new legally binding instrument.39 In addition, in the
fall of 2011 and during the negotiations in Durban, the EU made
clear that it would agree to a second commitment period of the
Kyoto Protocol only if other countries adopted a roadmap toward
a universal, legally binding agreement under the Convention
applicable to all Parties.40
REMAINING AMBIGUITIES ON LEGAL FORM
Despite the noteworthy expressed willingness by some
Parties to be bound by a common legal instrument beginning
in 2020, the ambiguity of the carefully crafted phrase “agreed
outcome with legal force” continues to hide diverging views
about the legal form of this future agreement and the commit-
ments it will contain. The terms “a protocol” and “another legal
instrument” have a clear precedent in international climate law
as both terms were used separately in the 1995 Berlin Mandate
that led to the adoption of the Kyoto Protocol in 1997.41 The
two terms convey the notion that the agreement to be negotiated
will have a legally binding form.42 By contrast, the novel phrase
“agreed outcome with legal force” has not been used in interna-
tional climate law43 and appears to be new to international law as
well.44 Since the meaning of the phrase is uncertain, the Durban
outcome does not necessarily imply that the agreement set to be
adopted in 2015 will be legally binding.
The formulation, “agreed outcome with legal force,” was the
result of a compromise brokered by the EU and India.45 While
other countries also expressed views on this question, these two
actors emerged in the final hours as the crucial deal makers.46
The EU’s satisfaction was essential to secure a second commit-
ment period to the Kyoto Protocol for developed countries.47
India’s consent was necessary because it appeared to be the most
steadfast in its refusal to commit to adopting an agreement of a
legally binding nature in 2015.48 This phrase allowed EU and
India to return home without having crossed any “red lines.49
In a speech to the Indian Parliament after COP 17, Minister of
State for Environment and Forests Jayanthi Natarajan conveyed
that India continues to oppose a legally binding agreement
that includes commitments for India.50 She noted that “[s]ome
parties led, in particular, by the EU pressed for a form of agree-
ment that should be legally binding on all Parties.”51 She added
that “India cannot agree to a legally binding agreement for emis-
sions reduction at this stage of our development” and that “the
[Durban] decision allows India the necessary flexibility over
the choice of appropriate legal form to be decided in future.”52
The Minister’s insistence on wording that is different from
“protocol” and “another legal instrument” suggests that she
attributed a different meaning to the phrase “agreed out-
come with legal force.”53 Meanwhile, Commissioner Connie
Hedegaard suggested that neither the EU nor India had over-
stepped its position when she stated that “[w]hile protecting our
respective interests, we gave a bit of ground to get a good result
for the global community.54
8SUSTAINABLE DEVELOPMENT LAW & POLICY
Under the Durban decision, India seems to interpret a non-
binding agreement, suggesting that the legal form of a future
agreement actually remains to be negotiated. In the words of the
Indian Minister:
The post 2020 arrangements, when finalized, may
include some aspirational CoP decisions, binding CoP
decisions, setting up of new institutions and bodies, and
new protocols or other legal instruments as necessary
to implement the decisions covering various issues
with various degrees of bindingness as per domestic or
international provisions of law under the Convention.55
Despite India’s protest, it may be the case that the nation’s
concerns and priorities can be integrated into a legally binding
agreement in 2015. India’s priority is essentially one of equity
and its ability to develop.56 The way forward may lie in the
design of a legally binding agreement that differentiates between
developed and developing countries in the content of post-2020
commitments and allows India to articulate commitments con-
sistent with its development and poverty eradication goals.
Another unresolved issue is the legal form of the commit-
ments that countries will implement post 2020.57 The Durban
decision establishing the AWG-DPEA does not specify the legal
form of the commitments that countries will take.58 Rather, it
merely notes that the new process “shall raise the level of ambi-
tion” and focus in part on “mitigation.”59 Even so, it is important
to note that not all legally binding agreements contain legally
binding commitments.60 For example, the UNFCCC is a legally
binding agreement whose commitments are not expressed in
specific and obligatory terms.61 Conversely, the Kyoto Protocol
is a legally binding agreement with legally binding mitiga-
tion commitments applicable to developed countries but not
developing countries, even though developing countries are
also Parties.62 Unlike in the Kyoto Protocol, Parties agreed that
the future Durban-based agreement will be “applicable to all
Parties;” it follows that if the commitments are mandatory and
specific, they will be mandatory and specific for all countries. 63
But the possibility remains that the commitments could instead
be voluntary for all countries. Despite this uncertainty, the launch
of a new Ad-Hoc Working Group may be ambitiously read as
Parties’ intent to create new, legally binding commitments under
the Convention and not replicate the framework established by
the Cancun Agreements.64
NATIONAL AND GLOBAL MITIGATION COMMITMENTS
Two important factors that underlie the effectiveness of the
global response to climate change are: 1) the level of ambition of
the commitments expressed by countries and 2) the institutions
and procedures that will ensure transparency and accountability
around these commitments. The Durban conference delivered
the detailed rules called for in Cancun, equipping the UNFCCC
to facilitate action on the part of all countries in a voluntary
framework.65 These provisions are somewhat helpful in that
they launch a process to increase ambition and establish insti-
tutions and procedures to coordinate and review the actions of
countries.66 However, the fact that negotiators delayed decisions
on several important items is a cause for significant concern.
UNCLEAR PROSPECTS FOR BRIDGING THE AMBITION GAP
The pledges made by countries under the Cancun
Agreements67 are, in aggregate, insufficient to meet the goal of
limiting a global average temperature increase to two degrees
Celsius above pre-industrial levels.68 Facing this inadequacy, two
fundamental questions consequently emerge: what options exist
for bridging this gap and when will countries consider and adopt
such options? The Durban decisions provided partial answers to
these questions.
The acknowledgement of the gap of further GHG reduction
pledges (“ambition”) in the Durban decisions, and the estab-
lishment of processes to bridge it, may be seen as a reason for
hope. Paragraph 7 of the Durban Platform decision establishes
a “workplan on enhancing mitigation ambition” to explore
options to close the ambition gap.69 Governments and observers
were invited to submit views about options to increase ambi-
tion, and the UNFCCC Secretariat will organize a workshop
during the year 2012 to discuss these options.70 In addition, at
the insistence of the Alliance of Small Island States (“AOSIS”),
the Cancun Agreements, as confirmed by COP 17 in Durban,
decided to periodically review the adequacy of the long-term
goal and aggregate steps taken by Parties to achieving it.71 The
first such review will begin in 2013 and conclude in 2015, as a
new agreement under the AWG-DPEA is meant to be adopted.72
This review thus constitutes an important lever to increase
ambition over the medium term as it could trigger countries to
take more ambitious action before 2020 and could determine
the commitments that countries take post 2020 under the new
international agreement.73
On a political level, another positive development in Durban
was the emergence of a new coalition of countries supportive of
ambition.74 The EU, AOSIS, and the Least Developed Countries
were most visibly in support of the Durban Package that was
ultimately adopted.75 This marks an important shift from previous
years, in particular from the dynamics of Copenhagen, where the
outcome was largely seen as the result of a deal between the United
States, China, India, and Brazil.76 The Cancun Agreements, while
more widely supported, merely vindicated the contents of the
Copenhagen Accord.77 In Durban, the final outcome of the confer-
ence remained elusive until the very end, in part because the major
players were still far apart.78 In the final days of the conference, a
more minimal version of the text emerged with softer language on
the ambition gap and steps to bridge it.79 It was at this point that
the EU and the AOSIS allied to push back and instead support a
text that clearly acknowledged the ambition gap, launched a pro-
cess for bridging it, and set a date for adopting a new international
agreement that would include all countries.80 Several commenta-
tors attribute the results of the conference to this new alliance, the
EU in particular.81 It remains to be seen whether this coalition
can be maintained but, if it is, the alliance could drive the climate
regime towards increased ambition and a framework that supports
the interests of pioneering countries, rather than a framework that
9WINTER 2012
establishes a lowest common denominator for countries that are
not ready to lead.
Despite these positive developments, several elements
suggest that the most difficult political questions were simply
postponed and that the prospect of meeting the two degree
Celsius goal is dim. Despite the periodic review to be under-
way in 2013, negotiators were unable to conclude the specific
scope of negotiations that will be subject to review.82 In addition,
countries were unable to reach agreement on a global mitigation
goal or peak year, despite earlier discussion of these topics in
Copenhagen and Cancun.83 In Durban, negotiators once again
postponed the decision for consideration at COP 18.84 Further,
some countries and observers fear that countries will not
increase the level of ambition of their commitments until 2020,
when the new agreement will enter into force.85 The adoption of
a work program for 2012 on options to increase ambition may
be a sign that such steps could be taken sooner, but the actual
results remain to be seen given the rapidly closing window for
meeting the two degree Celsius goal.86
IMPROVED BUT INSUFFICIENT TRANSPARENCY
On the mitigation front, one of the main achievements of
the Durban talks was the adoption of guidelines and procedures
for the regular reporting to the Convention and peer review of
Parties’ greenhouse gas emissions, mitigation actions, support
provided, and support received.87 The Copenhagen Accord in
2010 and COP16 in Cancun in 2011 together mark an important
shift on the question of measurement, reporting, and verification
(“MRV”).88 Those agreements established that developed and
developing countries would produce regular reports that are
subject to some form of international review.89 In Durban, Parties
made this new framework operational by adopting modalities for
reporting and review to be applied to developed and developing
countries.90 Developed countries will submit their first biennial
reports by January 2014 and developing countries will submit
their first biennial update reports by December 2014.91 These
reports will be subject to a process of “international assessment
and review” and “international consultations and analysis” for
developed and developing countries respectively.92
The adequacy of these guidelines can be best assessed based
on their end goals. First, an MRV framework can help countries
better understand other countries’ actions and gain confidence
that all parties are living up to their commitments. Second,
MRV can provide accountability.93 Regular reporting and review
of countries’ emissions and actions intend to expose countries
that are not fulfilling their commitments. In theory, the threat of
being “named and shamed” provides an incentive to countries
to comply with their obligations.94 Third, an adequate MRV
system would generate information that is sufficiently complete
and comparable to enable an assessment of whether countries,
in aggregate, are doing enough to stabilize greenhouse gas
concentrations in the atmosphere at the levels needed to meet
global mitigation goals.
However, the Durban decisions provide limited country
accountability and aggregate accounting in practical terms.95
The Durban decisions give no explicit right to observers, such as
nongovernmental organizations and representatives of the media,
to attend or offer comments or questions during the sessions in
which the reports of countries are discussed.96 This will likely
reduce the level of interest among civil society in these reports
and consequently weaken the “name and shame” effect of the
process.97 Secondly, the information requested of countries
in these guidelines is likely to be insufficient to enable an
accurate assessment of the world’s progress towards the two
degree Celsius goal. This is due in part to the fact that many
of the countries’ pledges under the Cancun Agreements have
special conditions associated with them and leave many assump-
tions unspecified.98 For example, the EU and Australia have
expressed their pledges as ranges, vowing to commit to the
higher end of their range only in the context of a comprehensive
climate agreement.99 China indicated that it would reduce the
emissions intensity of its economy by forty to fifty percent below
2005 levels by 2020, but has not specified base year emissions or
GDP projections for the year 2020.100 Developed countries put
forward economy-wide emissions targets but, unlike the Kyoto
Protocol, the Cancun Agreements do not specify in which sectors
of their economies these countries will reduce emissions.101 The
United Nations Environment Programme (“UNEP”) estimates
that this uncertainty surrounding countries’ pledges and the way
in which they will be implemented will result in an emissions gap
ranging from six to eleven giga tons CO2 emissions (“GtCO2e”)
in 2020 compared to what is needed to have a likely chance of
meeting the two degree goal.102 The Durban decisions do call
on developed countries to submit additional information about
their pledges using a standardized template.103 The UNFCCC
Secretariat will also organize workshops to clarify the pledges
of countries.104 However, developing countries are not required
to use a similar template.105 In addition, the Durban decisions
neither include an agreement on common accounting rules nor
set up a process to agree to such rules.106 The topic of common
accounting rules has been hotly debated among negotiators.107
The EU and the AOSIS in particular have been advocates for
such rules, whereas the U.S. has resisted these demands.108
In the end, the division was bridged through a paragraph with
no real operational effect and which reduces the prospects of
adoption of common accounting rules in the future.109
Common accounting rules are necessary to ensure that
countries account for their emissions reductions and enhanced
removals in a complete and standardized manner. One risk to integ-
rity, for example, is that countries could use different multilateral
or bilateral offset programs.110 Without common accounting rules
for these offsets, emission reductions could be counted multiple
times.111 UNEP estimates that such “double-counting” could result
in an increase in emissions of up to 1.3 GtCO2e in 2020.112
EQUITY
CONTEXT
The topic of equity has been among the most central and
contentious in the climate negotiations since the adoption
of the UNFCCC in 1992.113 The Convention treaty enshrined
10 SUSTAINABLE DEVELOPMENT LAW & POLICY
the notion of equity in Article 3.1 through the principle of
“common but differentiated responsibilities and respective
capabilities.”114 Parties have since been at odds over how to
interpret this principle.115 The Intergovernmental Panel on
Climate Change acknowledged that favoring certain proposals
over others comes down to “a policy judgment.116 A major
source of discord has thus been how to make this widely
accepted principle operational.117 Academics and policy
analysts have written extensively on the topic of equity as it
relates to climate change.118 Until now, the debate has mostly
centered on the way in which responsibilities for future emissions
cuts among countries should be allocated.119 Most proposals
use countries’ capacity and responsibility for past emissions
(also known as historical responsibility) as a basis for their reduc-
tion recommendations.120The following section examines how
UNFCCC negotiators at the Durban conference have tackled
the notion of equity. Though this central issue is one of the keys
to unlocking other roadblocks, governments have made little
progress until now on the way in which equity should be inte-
grated into an international agreement.121 The Durban decisions
offer a window of opportunity to begin a dialogue on this question.
But statements by negotiators reveal that views are still far apart
and that much work will be needed to find common ground.
THE TREATMENT OF EQUITY IN DURBAN AND BEYOND
Progress on the question of ambition, which this article
discussed above, will likely be closely tied to progress on the
question of equity. In the lead-up to the Durban conference,
the Government of India requested that three items be added
to the provisional agenda of COP 17, one of which related to
“equitable access to sustainable development.122 The submis-
sion states that “[t]he decisions at Cancun imply that the global
goal of climate stabilization in terms of limiting the temperature
rise to two degrees Celsius above pre-industrial levels should be
preceded by a paradigm for equitable access to sustainable
development.”123 The essence of the Indian position, which
has received support from other developing countries, is that
UNFCCC Parties should reach agreement up-front on the way
in which the future effort to reduce emissions will be allocated
among countries.124 Many developing countries fear that, with-
out an explicit agreement on the way in which the global “carbon
budget” will be divided, developing countries will not have
sufficient flexibility to prioritize their development and poverty
eradication goals.125 These discussions have become relatively
contentious because what India and its allies describe as a
legitimate claim to fairness and development, some developed
countries view as an effort on the part of the major emerging
economies to escape the increasing responsibilities that come
with economic growth and higher greenhouse gas emissions, or
as a distraction at best.126 In the end, Parties agreed at COP 17
to hold a workshop in 2012 on the topic of “equitable access to
sustainable development.127
In addition, the issue of equity was central to the discus-
sions on the Durban Platform. In a departure from the approach
taken under the Kyoto Protocol, developed countries insisted
that any future legally binding international agreement should
include commitments from all countries, or at least the major
economies, rather than commitments from developed countries
only.128 The United States, for example, conditioned its accep-
tance of a future legally binding climate agreement on the fact
that commitments under this agreement should apply symmetri-
cally to developed and developing countries.129 The adoption of
the decision on the Durban Platform suggests that a balance was
struck between this demand and the concern expressed by India
that any future agreement should reflect equity. It is striking that
the word equity and the principle of “common but differenti-
ated responsibilities and respective capabilities” are absent of
the decision on the Durban Platform.130 Some commenta-
tors have read this absence as the result of demands by some
developed countries.131 U.S. Climate Envoy Todd Stern reported
that he did not want any terms used that could “be read by oth-
ers to perpetuate [...] that firewall.”132 The firewall is a term
widely used to refer to the traditional sharp distinction under
the UNFCCC and the Kyoto Protocol between the level
of responsibility for future action of developed countries and
developing countries.133
Meanwhile, Indian and Chinese negotiators have offered
a different interpretation of the Durban Platform decision.134
They believe that equity actually features in the text of the
future climate agreement because Paragraph 2 states that the
new agreement will be “under the United Nations Framework
Convention on Climate Change. . . .135 These negotiators argue
that this phrase ensures that a future agreement will respect the
principles of the Convention, including the principle of common
but differentiated responsibilities and respective capabilities.136
Future negotiations are therefore likely to focus less on
whether equity will be a part of the future climate agreement,
and more on how the principle of equity should be integrated
in this agreement. Importantly, symmetry and equity are not
necessarily mutually exclusive. There are ways to integrate the
principles of common but differentiated responsibilities and
equity into a legally binding agreement that includes mandatory
commitments for all Parties. The U.S., for example, has argued
that the content of future commitments could differ between
developed and developing countries, as long as their legal
character is identical.137 Developed countries could commit to
absolute economy-wide reductions in greenhouse gas emissions,
while developing countries could commit to reducing emissions
compared to a business as usual scenario or could commit to
implementing certain climate policies. The way forward may
therefore lie in identifying ways in which symmetry and equity
can be made compatible. Better trust and understanding on
equity are necessary to inform and ultimately adopt countries’
individual and collective mitigation commitments post 2020.
These examples show that the issue of equity will certainly
remain central to the climate negotiations in the months and
years to come. The Durban decisions, through carefully worded
compromises, have postponed political decisions on equity
that, however difficult, are necessary to make progress on other
critical issues, including ambition. The silver lining may be the
11WINTER 2012
workshop on equity called for under the Durban decisions. It has
the potential to start an overdue dialogue on options for integrating
equity in an international agreement on climate change in a way
that reconciles Parties’ varied needs and aspirations, as well as
global mitigation goals.
CONCLUSION
What did the Durban climate talks deliver? The examples
reviewed in this article show that, on the most fundamental
issues that will determine the effectiveness of global efforts to
address climate change, the record is mixed. Parties did manage
to achieve some incremental progress, at times defying the odds,
which could signal a shift in the climate regime towards greater
ambition.138 But several of the delicate compromises struck on
legal form, national and global mitigation commitments, and
equity did not bridge cleavages on the most sensitive and funda-
mental political questions.139
To those who have followed the UNFCCC negotiations for
some time, this diagnostic is familiar because it is reminiscent
of previous meetings of the COP and CMP.140 This result is also
perhaps natural. After all, climate change is one of the most
difficult environmental, economic and social issues of our time
and the ongoing negotiations and deals serve to incrementally
build a coordinated global response to this threat.141 Howeve r,
time is of the essence.142 Further delays risk thwarting our
ability to reach the stated two-degree Celsius goal.143
In conclusion, one may reflect on the causes and possible
remedies for this misalignment between the urgency of the prob-
lem and the slow, limited, and incremental solutions that the
international climate negotiations have been able to deliver until
now. The problem can be seen as one of misalignment of politics
and expectations. While the UNFCCC has long been seen as the
main – and sometimes only – legitimate international body for
dealing with climate change, the time may have come to redefine
the roles of various actors in the broader climate regime.144 This
calls for focusing the UNFCCC on the essential functions it is
best placed to fulfill. It also calls for catalyzing and assigning
responsibility to other international initiatives, national govern-
ments, and local actors to play their part.
Climate change, despite its global dimensions, requires
action at the national and sub-national level.145 Critics of the
UNFCCC will use this fact to argue that a bottom-up regime
will create greater incentives for action. But rather than dis-
count the UNFCCC, one should define a catalytic role for it.
The UNFCCC arguably remains best placed to fulfill certain
fundamental functions. This may include setting international
goals, tracking the individual and aggregate performance of
countries to stay on track with those goals, balancing country
interests in an equitable manner, and providing a legal frame-
work that generates confidence that all countries will implement
their commitments.146 With regard to these functions, some of
the outcomes of Durban were meaningful. The Durban decisions
create a new window of opportunity for increasing ambition and
securing a meaningful commitment to collective action in 2015
in a new international agreement.147
But it is true that the UNFCCC alone cannot deliver the level
of global action needed. Efforts to generate greater ambition
will be successful only if actions are taken to generate political
support at the domestic level.148 In many ways, the resolve of
ministers and negotiators at the UNFCCC is a reflection of
domestic political will. Issues such as national commitments
to mitigation and public climate finance are driven by national
political and economic agendas rather than international
bargaining among governments.149 The development and
deployment of low-carbon technology also depends on the coop-
eration of many actors outside the U.N., including the private
sector.150 While the UNFCCC can inform, reflect, measure,
and coordinate the actions of countries, the level of ambition of
these actions and the adequacy of the new agreement that will
be adopted in 2015 will be in large part determined by our abil-
ity to generate domestic political support for climate action.151
Domestic and international institutions need to act in tandem
and reinforce each other over time.
Other international initiatives can also complement
the UNFCCC, including the United Nations Convention on
Sustainable Development (“Rio + 20 Summit”), the World
Trade Organization, the G20, the Montreal Protocol, the
International Maritime Organization, the International Civil
Aviation Organization, and bilateral initiatives.152 Here again,
the objective would not be to seek alternatives to the UNFCCC
but to think more strategically about the defined roles that the
UNFCCC, other international organizations, national govern-
ments, and sub-national actors can play to collectively achieve
our common goal. The Durban conference opened a narrow
window of opportunity for increasing ambition in time to meet
the two degree goal. Unless we mobilize domestic constituencies
and international institutions to generate sufficient political will,
the odds are high that future climate meetings will be unable to
unlock the ambiguities that persisted in Durban and we will miss
our target goal.
Endnotes: Unconstructive Ambiguity in the Durban Climate Deal of
COP 17 / CMP 7
1 Connie Hedegaard, Climate Change: India a Construc-
tive Force in Durban, THE ECON. TIMES (Jan. 29, 2012),
http://articles.economictimes.indiatimes.com/2012-01-09/
news/30607496_1_climate-change-eu-and-india-connie-hedegaard.
2 Id.
3 See UNFCCC, Draft Dec. -/CMP/7, Outcome of the Work of the Ad Hoc
Working Group on Further Commitments for Annex I Parties under the Kyoto
Protocol, 16th Sess., (Advance Unedited Version).
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