Bending the curve back to multilateral agreement on climate change

The Durban climate negotiations ended a day-and-a-half after schedule. COP President Nkoana-Mashabane called the decisions “truly historical”, while some NGOs said that governments failed to protect people and that hundreds of millions would suffer. Assessments of Durban depend on criteria of success – what it is measured against.
Success depends on what you measure
Measured against what the climate needs, the Durban outcomes are clearly not enough. The commitments agreed are weak, putting the world on a path to temperature increase of 3.5°C or more. In relation to what was possible politically, they quite strong, and exceeded the expectations of most negotiators and observers. While the climate needs a new treaty right now, geo-politics simply did not allow a breakthrough of a ‘big bang’ kind. Durban was more like a slow, tectonic shift.

The talks came close to no result at all. That would have been even worse for climate change and its impacts on poor, vulnerable people. The choice at the end of Durban was between negotiating a new legal regime for all but later, or no deal at all. The talks agreed on an amendment of the Kyoto Protocol; extensive decisions on Long-Term Cooperative Action (the LCA); operationalizing the Green Climate Fund (GCF); and a Durban Platform to negotiate the future of the climate change regime, multi-laterally. Most importantly, perhaps, Durban steered the process back onto a multilateral track.
Good for climate – no
Durban agreed to increase the level of ambition – but not now. That is not enough. It remains true that the contents of the deal is not what the climate needs. “Slow” is terrible for the climate. There is not good balance in mitigation, which made African negotiators quite unhappy, in addition to slow progress on adaptation and its funding. WWF stated that it “is clear today that the mandates of a few political leaders have outweighed the concerns of millions, leaving people and the natural world we depend on at risk. Catastrophe is a strong word but it is not strong enough for a future with 4 °C of warming” (see http://tinyurl.com/bv4yz5a). Others commented that while Durban agreed a step toward a legal treaty, 4 °C means “climate catastrophe” due to a lack of mitigation ambition, a clear mitigation pathway and agreed a fund that is empty.

These are accurate assessments of what is needed, by people and the climate. Yet it could have been much worse. After Copenhagen and Cancún, there was a significant chance that negotiations would veer off into the pledge and review world. After Durban, the multi-lateral rules based system remains at the heart of both work now and negotiation of the future.

A last round for Kyoto Protocol and its rules
Durban was the last chance to save the Kyoto Protocol (KP). The Sunday morning plenaries were focused on securing a second commitment period of the KP, linked to agreement on the legal form of the outcome under the Convention. With the EU showing leadership – virtually alone among developed countries – a future for Kyoto was agreed. This is significant in its own right, with detailed commitments (QELROs) to be submitted by 1 May 2012, with the final adoption in Qatar next year – but politically the deal is done. It is clear that there will not be a third commitment period, but it means that the only legally binding instrument remains in force, while a new agreement is negotiated by 2015. The importance of multi-laterally agreed rules is hard to over-state.

In the details of the KP decisions accompanying the core – to amend Annex B of the KP, with numbers – there are some problems. A proposal to increase the level of ambition (which might have made it palatable to AOSIS and others) was not reflected in any versions of the Chair’s text. To increase ambition, at least within the ranges pledged (the EU’s 20 to 30%) remains important. The competent Chair (from New Zealand) also did not judge that a creative proposal by the African Group to deal with carry-over of ‘hot air’, could be included. The 2nd commitment period may go for five or eight years, with the EU, as main implementer, favouring the latter. The African proposal to limit carry-over had support from most Parties, and if a reserve were used, half the proceeds would have gone to adaptation. It will be important to fix this by 31 March 2011, before developed countries submit their QELROs. This leaves the EU, as only major player willing to take legally binding mitigation commitments, in a tough position. No doubt they will be watched closely by their own constituencies in the lead up to the May deadline.

Durban builds a platform for something legal
The discussion on the ‘big picture’ in the Indaba (more on that below) focused on implementation ‘now’ and agreeing in the future – notably the KP and the Durban Platform. A deal applicable to all by 2015 is very significant shift to define differentiation in a more appropriate and reciprocal way in the future. Meanwhile, work on implementation is urgent. “Now” and the “future” is not an either-or choice, we must do both.

The ‘Durban Platform on Enhanced Action’ will negotiate “a Protocol, another legal instrument or agreed outcome with legal force under the Convention applicable to all”. The first two are a reference to the Berlin Mandate that set up the negotiation of the Kyoto Protocol, which is the only existing legally binding climate agreement. Parties and lawyers alike will spend years parsing the last option if negotiations continue to go to the lowest common denominator and pursue this option. A new ad hoc working group will negotiate a new agreement, with a deadline of adopting it in 2015. The agreement is due to come into effect from 2020. The post-2020 timing has been criticized by many as too late. Yet understood as a time when all major economies might take on commitments and actions under a new treaty, it is a matter that will take time.
For more on the process that resulted in the DPEA and implications for India, see Lavanya Rajamani’s insightful analysis at http://tinyurl.com/c4pyvbs); and an excellent Q&A by Jake Werksman on legal, at (http://tinyurl.com/d2bbrhv)

Given that two of three options propose legally binding agreements, and the third is ‘with legal force’, the Durban mandate does not unambiguously launch a treaty negotiation but it certainly moves us a step away from a pure pledge-based system. In that regard, the focus on equitable access to sustainable development (under Shared Vision, Review and the Indian agenda item) will need to be unpacked in the next two years. Experts from BASIC countries have contributed substantial analysis (downloadable at http://www.erc.uct.ac.za/ ) to start a discussion, and there will hopefully be contributions from a wide variety of understandings to a work programme under the SBSTA. Whatever process continues, it must remain rooted in science and equity.

Certainly interpretations of the Durban Platform will continue, as the language indicates more that is common (‘applicable to all’) but the instruments will have some differentiation (‘under the Convention’ with its principle of equity and common but differentiated responsibilities and respective capabilities. The division of the world into developed and developing countries is not a bi-polar one as it was in 1992, but it remains true that countries are not all the same. A shift to more differentiation in a manner more appropriate to the 21st century will take time. Implementing a new agreement post-2020 will only be acceptable if implementation continues in parallel – urgently and at a faster pace.

Work in the LCA increasingly focused on the now
In the decisions of the Ad hoc Working Group on Long-Term Cooperative Action (AWG-LCA) under the Convention, much work focused on the “now” was captured. The capturing was not perfect, given that the take-it-or-leave-it package could not be reopened in the last two days. There’s a strong Kiwi flavor in the mitigation under the LCA, for example.

Overall, the mitigation ambition under both the KP and LCA for developed countries remained limited to the reductions pledged in Copenhagen.

There is reference to the gap between pledges and the political goal of keeping temperature below 2 °C. The LCA text acknowledges a “gap between the aggregate level of reduction in emissions of greenhouse gases to be achieved through global mitigation efforts” and what IPCC AR4 requires – at the insistence of Japan and Russia, this reference was included in both the section on mitigation ambition by developed countries and diversity of action by developing countries. The problem is that it is not operational, at least not yet.

Developed Countries sticking to weak mitigation targets
With respect to developed countries , there was no movement beyond pledged targets for a single year. Knowing what happens in 2020 tells you nothing about earlier or later years – and the atmosphere only cares about the ‘area under the curve’. The US refuses to use Kyoto language (“assigned amounts”), was not keen on carbon budgets or even proposals for trajectories proposals it had pushed in 2009 At negotiator level, it seemed within reach to agree to convert ‘targets into tons’ of CO2–eq over a period of time. But this language too was excised from the final text.

If form was tough, nothing moved in terms of increasing the stringency of mitigation commitments by developed countries. The US pushed very hard not to change even the form of its existing pledges, never mind the actual number for 2020. President Obama had put forward in Copenhagen a target of 17% below 1990 levels by 2020. That’s maybe -4% from 1990 levels, not nearly enough. The US insisted that this cannot be changed, and further more were extremely reluctant to change even the form of the target to which they have committed. Canada simply follows whatever target the US decides, explicitly, and within days of Durban, withdrew formally from the KP. None of the other Umbrella Group countries mentioned moving within their ranges. Australia, for example, pledged reductions between 5% and 25% below 1990 levels by 2020, depending on conditions. Most of those, according to its own analysis, have been met, but there was little discussion in Durban of moving up within the pledged ranges, never mind beyond. Clearly the NGO movement could see this coming, and awarded Canada, the US and New Zealand a “colossal fossil” on the last day in Durban (see http://tinyurl.com/cmv9y9s ).

Mitigation actions by developing countries – less unambitious (read that twice)
The structure to incentivize more ambitious mitigation actions by developing countries is the registry. This was further operationalized in Durban, but watered down from the original proposal (including text by South Africa) of a mitigation mechanism to a web-based platform. Even the inclusion of a ‘dedicated team’ in the Secretariat was resisted by developed countries. The challenge for developing countries will be to submit ambitious action as soon as possible. There certainly are many preparing to do so, so that the pattern of developing countries being more ambitious – relative to those of developed countries continues – even though it should be the other way around.

For the first time the Chinese Minister was able to talk of the possibility of a legally binding instrument to include targets for larger developing countries, subject to certain conditions – in the media, and after 2020. Perhaps once the new Chinese leadership is in place, and the next five-year plan kicks in, there may be more flexibility. India still has close to a billion poor people, and rightly insists that they are different. Yet in absolute terms, India is large and in the end, Minister Natarajan was gracious in accepting compromise. From a climate point of view, for as long as the US, China and India hide behind each other, we will continue to have a low-ambition agreement.

Work in progress on Transparency
Transparency was an important focus in Durban. Compliance, comparability of efforts and a number of acronyms around measurable, reportable and verifiable (MRV) were the focus of intensive work.

Under international assessment and review (IAR), a mention of compliance survived, albeit vaguely – that IAR “should take into account any future agreement on a compliance regime for mitigation targets under the Convention”. Given the red-line the US had against any mention, this reference to compliance leaves a little room for further movement, perhaps to a review process with consequences. Balances will be needed, such as facilitative processes for developing countries and a review with consequences for developed countries – which still have greater capability and therefore should do more. China’s interventions suggest that it will want to see some consequences of IAR before accepting fully a record of facilitative sharing of views – which was not agreed at negotiator level, but added to the final text. Comparability appears several times in the text on developed countries – but there is a strong move to change the Bali definition of comparability “among developed countries” to comparing across all.

Biennial reporting and updates (latter for developing countries) are developed in some detail, with guidelines annexed and to be revised later. Tables are still to be developed – including a common reporting format for finance by developed countries, but also tables to report on emissions and mitigation on both sides. References to the INF.1 document under biennial update reports are another example where understandings at official level were changed (possibly after consultation by the NZ Minister, even though he did not have reporting in his brief) in the final version.

Multi-lateral control of the Green Climate Fund – but with no actual funds
The report by the Transitional Committee (presented by SA’s Trevor Manuel) was supported by most Parties. At the last TC meeting, only the US and Saudi Arabia had demurred, and in Durban the US was soon alone. In their acceptance of the overall package, US made a significant concession by the US. There will now be one operating entity of the Financial Mechanism of the Convention – the GEF – under the World Bank, and a new one, the Green Climate Fund (GCF), under the UNFCCC.

However, the GCF is at this stage another empty fund. Work on the emissions gap needs to be matched with work on the finance gap. Watchful eyes will be needed to make sure that the political commitment made in Copenhagen is honoured – that “a significant portion of such funding should flow through” the GCF. And the fund needs to be filled – with contributions from developed countries and innovative sources. The progress on long-term finance was very limited – but at least work can be done. Nicaragua decried “our inability to bail out nature, when we so readily bailed out banks in 2009” (see http://tinyurl.com/cd7bjwz. Fast-start funding ends (roughly $10 billion / year) ends in 2012, and the commitment by developed countries to jointly mobilise $ 100 billion / year is for 2020. What will be available in 2013-2019 is unclear, and the sources to grow towards the $100 billion need urgent attention. Two work programmes provide opportunities to make more progress on long-term finance and sources, one undertaken by the COP itself and by the Standing Committee.

Continuing work on adaptation, technology and capacity-building
So, Durban strengthened the multi-lateral basis to work on for crucial issues. There is more than has been elaborated above:
• An Adaptation Committee that has potential to end the fragmentation of this issue across the climate regime by linking with a range of other bodies and fora;
• Continuation of the work on loss & damage;
• a call for proposals for the Climate Technology Centre and Network;
• work on capacity-building; recognition of the forum on response measures and consolidating all progressive discussions related to response measures under the Convention; and more.

A final one worth highlighting is some movement towards a new market mechanism. Durban initiated a work programme under the LCA (in its final year, 2012), to elaborate modalities and procedures and recommend a decision for COP 18.

By now, those readers still with me should have the sense that there is quite a bit of substance in the Durban package, even though it is far from ideal, or sufficient to the task to stopping climate change.
Politics did not allow a climate breakthrough
Politics did not allow a climate breakthrough in Durban. The gap between what is needed and what is possible politically has not narrowed. That COP-17 and CMP-7 would not even aim at a new treaty was clear well before the meetings started. Political conditions, notably lack of willingness of major players to take ambitious commitments and actions, had not changed significantly since Cancún. Given those framing conditions, the outcome exceeded expectations and ensured that negotiations continue multi-laterally.

Who is holding back and who might push forward a climate deal?

Increasingly, discussion in the corridors and around coffee tables raises the question of whether we can afford to design the future of the climate regime around the lowest common denominator. For years, the climate community has sought to bring the US back in. Yet the US ratifies few treaties, so there is no guarantee that any agreement concluded in 2015 will be ratified by the US Senate. Most climate negotiators have become experts in the arcana of what is required to pass laws and treaties in the US system (an interest that is not reciprocated by American understanding of others’ legal systems). The question that is increasingly openly posed is “do we go ahead without the US?” Key to the answer will be willingness by China to make that geo-political move. For some time, my assessment has been that the latter is a question of when, not if. The signals that China gave during Durban seem to indicate the time may be closer than previously thought.

Who might take the climate action forward? Alliances between countries wanting to move forward were strengthened in Durban. Small islanders (AOSIS), least developed countries (LDCs – many of which are in Africa) and Europeans were able to find common approaches on core issues. This despite being from Annex I and non-Annex I countries. The potential to build a Green Group within the process, beyond informal dialogues outside of negotiations, is reason for hope. But the grouping will need support from some major players to survive the power politics of climate negotiations.

Multi-lateralism starting to work again – but it needs to deliver faster
Durban saw an Indaba process that was new, but also reverted to best UN practice. The South African COP Presidency ran a transparent process. While many observers praised the process, there were some critical comments on glitches and calls for stronger direction. Yet the Durban Indabas skillfully avoided the Copenhagen small rooms, and (mostly) Ministerial drafting of text as in Cancún. The Indaba produced a big picture from early, that all could see, and created the conditions for a huddle in the final plenary. The huddle changed the momentum away from imminent collapse to taking what was possible – an imperfect package. In the good tradition of Indabas, negotiators simply kept talking until it came together.

The alternative to the deal that emerged from the Indabas was collapse. The multi-lateral negotiations might not have survived a Durban collapse, if that had followed Copenhagen (no treaty) and Cancún (saving the process, with much deferred). Next year in Qatar, there might have been no agreed text at all agreed. Instead, there will be a second commitment period of the Kyoto Protocol, a Durban Platform with a work programme, a fund to be filled, and several aspects of the Bali and Cancún mandates agreed – and many more to be concluded.

Durban did reaffirm that the multi-lateral process is central to agreeing on climate change. It may not be sufficient on its own and clearly many other bodies are addressing various aspects of climate change. Yet for decision-making, no other forum has the legitimacy of universal participation. Smaller clubs often exclude the poorer countries, as is the case in the G-20, MEF, or indeed the OECD and IEA. Those that do tend to be partnerships or dialogues. Only the UNFCCC offers the potential for solidarity and protection of the weak.

With the Durban package (KP, AG-DP, GCF and LCA text), the multi-lateral process will continue to be central and determine next steps. Parties already agreed in 2007 that we need of find “ways to strengthen the catalytic role of the Convention in encouraging multilateral bodies, the public and private sectors and civil society, building on synergies among activities and processes, as a means to support” mitigation and adaptation in a coherent and integrated manner.

Realising the catalytic role of the Convention – and defining links to other bodies

The catalytic role of the Convention should be defined as a primary, decision-making one, with other bodies, fora and processes given clear and specific mandates to address specific issues, and report their results back to the UNFCCC, its Kyoto Protocol and the future Protocol / instrument / AOWLF. No matter what the form, all Parties will need to increase their level of ambition. All need to do more, while some must still do more than others.

Climate change is “unequivocal”, as a scientific matter. No outcome will be accepted unless it is equitable and seen to be arrived at in a fair manner. Negotiations must continue to be based work on science and equity. Increasingly, the discourse of climate talks is dominated by economics, trade, property rights and pure power politics. All can make their contributions. But in the end, none of us can negotiate with the climate.

In the nature of a blog, the views expressed are purely those of the author and do not represent the views of the Energy Research Centre, the University of Cape Town, nor those of South African delegation.