Uncertain stand

Print edition : January 13, 2012

Ministers huddled during a plenary session at the United Nations Climate Change Conference (COP17) in Durban December 11, when they reached an agreement to extend the Kyoto Protocol. - AGNIESZKA FLAK/REUTERS

India fails to extract emission cut commitments from Annex I countries in return for agreeing to the Durban Mandate at the climate talks.

INDIAN negotiators perhaps lost the wood for the trees at the two-week-long 17th Conference of the Parties (COP17) to the United Nations Framework Convention on Climate Change (UNFCCC) in Durban, South Africa, by agreeing to the text of the final decision. The key component of this decision call it the Durban Mandate is the launching of a new round of negotiations known as the Durban Platform for Enhanced Action (DPEA) aimed at a new climate control agreement under the UNFCCC involving all countries.

The legal nature of this new agreement has been left undefined it could be a protocol, another legal instrument, or an agreed outcome with legal force. The last phrase in quotes, whose meaning is not quite clear, was incorporated after prolonged wrangling as a compromise to India's insistence on including legal outcome as the third option.

The exact form of this new agreement is to be developed by an Ad Hoc Working Group on the Durban Platform for Enhanced Action, which will begin work in the first half of 2012 itself. The body has been mandated by the decision to formalise the regime not later than 2015 so that it can be adopted at COP21 that year and brought into effect in 2020.

The final draft document containing this decision was proposed by the COP17 President, the South African Minister for International Relations and Cooperation, Maite Nkoana-Mashabane, at an informal late-night plenary on December 10, long after the scheduled closure of the summit on the evening of December 9. It has been delivered as part of a package the Durban Package of four decisions on a take-it-or-leave-it basis with no time for the negotiating teams to study and discuss it before endorsing it.

The elements of the Durban Package are : (i) the Second Commitment Period (SCP) for emissions reduction by Annex I countries under the Kyoto Protocol (as negotiated under the Ad Hoc Working Group on Further Commitments for Annex I Parties under KP (AWG-KP)); (ii) a decision on the work of the Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA); (iii) a decision on the Green Climate Fund (GCF); and (iv) an agreement on the Durban Platform.

Developing (or non-Annex I) countries initially resisted this vigorous and concerted move by developed (Annex I) countries to put in place a new legally binding climate agreement involving all countries right from the start of the talks. The developing countries instead wanted a definitive decision to have the KP under which only Annex I countries had to meet emission reduction targets extended for the SCP beginning 2013, with more ambitious targets so as to prevent global warming beyond the guardrail' of 2 {+0}Celsius that can otherwise lead to catastrophic climatic consequences for the world. That resistance could not be sustained as in the end the European Union (E.U.) presented the new legal regime as a quid pro quo for the KP's SCP.

South African Foreign Affairs Minister and President of COP17 Maite Nkoana-Mashabane and COP17 Executive Director Christiana Figueres on the final day of negotiations.-RAJESH JANTILAL/AFP

To recall, the AWG-KP was established in 2005 and mandated to arrive at commitments for Annex I countries beyond 2012 in aggregate and individually. The AWG-LCA was instituted in 2007 as part of the Bali Action Plan (BAP) for a shared vision for long-term cooperative action, including global goal for emission reductions. The BAP was premised on four key elements national and international action on mitigation (which brought the United States, a KP non-signatory, on board to take actions comparable to other Annex I countries under the KP); adaptation, technology development and transfer to support mitigation and adaptation by developing countries, financing to support mitigation and adaptation and technology cooperation. Since then, negotiations have followed this twin-tracks approach although since COP15, with the Copenhagen Accord, there has been a consistent attempt by developed countries to dismantle it and impose obligations for mitigation on developing countries under some mechanism that involves all countries.

Most developed countries were not interested in having this KP-mandated top-down approach extended. This has been in evidence since COP15 and the attempts since then have been to replace it with a far weaker bottom-up pledge and review mechanism based on a laissez-faire approach of voluntary emission cuts by each country that will include non-Annex I countries as well a mechanism that would remove the distinction between developing and developed countries and merge the twin-tracks approach. The developed countries' argument has been that developing countries now contributed to over 60 per cent of current emissions, with China and India being among the major carbon emitters in the world, and that any international treaty to restrict emissions made sense only if it included the major non-Annex I emitters as well.

Only the E.U., with its already legislated commitment to reduce emissions to 20 per cent below 1990 levels by 2020 and its offer of 30 per cent reduction conditioned upon other developed countries committing themselves to comparable emission reductions and developing countries contributing adequately according to their responsibilities and respective capabilities, was willing to accept an SCP but only if a new legally binding agreement aimed at mitigation targets for all countries was put in place by 2020 that would bring all Annex I and non-Annex I countries under it.

Indeed, in a statement released on November 24 from Brussels, the E.U. had stated: The U.N. climate change conferencemust agree on a road map and deadline for finalising an ambitious, comprehensive and legally binding global framework for climate action by all major economies. Agreement on this road map is of the reassurances the E.U. requires for entering into a second commitment period of the Kyoto Protocol. With developing countries not wanting Durban to be the burial ground' for the KP, the E.U. was able to carry many developing countries with it and, of course, developed countries, in particular the U.S., had always wanted a treaty that maintained a symmetry between developed countries and other major emitters, India and China. Indeed, Para 7 of the Durban Mandate states this explicitly by requiring the launching of a work plan on enhancing mitigation ambition to identify and to explore options for a range of actions that can close the ambition gap with a view to ensuring the highest possible mitigation efforts by all parties.

The KP has survived through the adoption of the outcome report of the AWG-KP by the President on the morning of December 11 though at this stage this would seem only notional because the AWG-KP has not yet arrived at any emission reduction targets (through amendment to Annex B of the Protocol) that the science of climate change calls for and the SCP has not been spelt out. But it still remains to be seen what these numbers will be given that the pledged targets following the Copenhagen Accord fall well short of what climate change demands as pointed out by the 2010 UNEP report ( Frontline, July 16, 2010), the ambition gap and whether these are translated into actual legally binding commitments under the Protocol. India should have extracted emission cut commitments of the Annex 1 countries in return for agreeing to the Durban Mandate, especially when what form this new agreement is likely to take remains unknown. More significantly, what could have serious consequences in future negotiations is that the Durban Mandate makes no mention at all of equity, or common but differentiated responsibilities (CBDR).

The draft decision that the President proposed was apparently the result of a series of closed-door talks over a few days among 20-30 countries. When the E.U. and other European countries and several developing countries (including the Alliance of Small Island States, AOSIS) insisted on a legally binding regime, which was a red line for India and China, both the countries baulked and wanted to add the third option, legal outcome. This was included in the President's final draft that was circulated at the late night plenary. Although Nkoana-Mashabane appealed to the texts of the four decisions as a whole, the chief climate negotiator of E.U., Connie Hedegaard, asked for reopening the Durban Mandate and demanded deletion of the third option. The E.U. had perceived legal outcome as weaker than a treaty or a legally enforceable instrument for emission cuts. This set in motion prolonged discussion on the issue.

In response, the Indian Minister, Jayanthi Natarajan, argued that equity and the CBDR were central to the debate on climate change and asked the parties not to push aside these issues. She asked how she could sign away the livelihoods of the poor when she did not know what the agreement would contain. She said the Durban Platform was the product of six days of talking and all ideas had been put forth but the final document was only the sense of the chair. The issue of equity, she said, could not be held hostage and it could not be pushed aside by the Durban process. However, these pleas did not pass muster with the developed countries, and notably the AOSIS group, as there had not been until then any sustained campaign by India to present equity as the core demand of developing countries to be met by the negotiation process under the COP, backed by well-researched numbers and arguments.

According to reports, India offered to withdraw the words legal outcome if the principles of equity and the CBDR were incorporated in the document. While the E.U. was willing to accept this, the U.S. chief negotiator, Todd Stern, who apparently put pressure on the President to remove this from the draft document in the first place, rejected it, saying that his country would not accept it. Eventually, a compromise was struck with the words legal outcome being replaced by agreed outcome with legal force as apparently suggested by Brazil's chief negotiator, Ambassador Luis Figueiredo Machado.

ENVIRONMENTAL ACTIVISTS DEMONSTRATE outside the conference venue on December 2.-MIKE HUTCHINGS/REUTERS

Having introduced equity with sustainable development as part of the three new items that India wanted included in the provisional agenda of COP discussions (items 11, 12 and 13), India failed to force it when it actually mattered. In fact, Jayanthi Natarajan commented at the plenary that the issue had been pushed somewhere else and did not form part of the main AWG-LCA document. Indeed, when she raised the equity issue, China and many other developing countries supported her and, with the E.U. willing to go along, if India had stuck to the demand for its inclusion in the draft, the U.S. would have been isolated. Ground was yielded too easily by India perhaps out of fear of being called a deal breaker'. It is unlikely that the third option is likely to fly in the negotiations to follow. Instead, if India had agreed to the other two options in return for a document inclusive of equity and the CBDR, India could have assumed a leadership role among the developing countries in the ensuing negotiations on Durban Platform. Considering that a legally binding commitment would have come into force in 2020 only by when India will necessarily have to take serious mitigatory measures any way, by playing a central role in the negotiations, India could have ensured that its architecture did not seriously constrain development and harm the interests of developing countries. By being too concerned about giving in to a legally binding treaty, India did not see the broader issue of equity to be important enough to take a tough negotiating stand on it.

But this lost ground can be regained because even though the phrases of concern have not been stated explicitly, the draft decision states that it will be a protocol, another legal instrument or an agreed outcome with legal force under the convention applicable to all parties (emphasis added). Since equity and the CBDR are intrinsic to the convention, the italicised phrase can be appropriately exploited to bring back that paradigm into the negotiations. But that requires hard-nosed negotiations backed by solid homework on how equity can be built in and operationalised through such a treaty. Preparing a well-thought-out strategy along with China for future negotiations and proactively taking into confidence other developing countries who can rally behind India's stand when the crunch comes need to be high on India's agenda. And this has to be done quickly because the mandate requires parties to submit their views by February 28, 2012. But this is not going to be easy as the U.S., having rejected its inclusion, would in the final decision try to interpret strictly by the text, which makes no reference to equity or the CBDR.

In fact, the report of the AWF-LCA was pushed through by the Chair, Daniel Reifsnyder of the U.S., even as developing countries raised concerns over many specific issues contained therein, in particular its lack of balance in relation to mitigatory actions by developed and developing countries. Several developing countries pointed out the absence of any reference to historical responsibility and the principle of the CBDR. Many countries expressed unhappiness over the fact that the document did not talk about the level of mitigation ambition needed by developed countries and that there was no provision for the comparability of mitigation efforts between KP parties and non-KP parties. Clearly, this has reference to the U.S., but the U.S. was fundamentally opposed to any attempt at Durban to review its pledge or on how to raise the ambition of GHG emission reductions. It had also rejected the idea of a common accounting framework or rules or compliance regime, which many developing countries and the E.U. called for. Referring to the Cancun Agreements, it said that it had given no mandate for such a review or establishing common rules.

There was also a demand from developing countries for working on the report to restore the balance. They were not in favour of adoption of the outcome document at Durban and proposed that this be done next year. But the chair, in an unprecedented move, transmitted the report to the COP under his own authority. However, he also submitted a note (Conference Room Paper 39), in which he stated that ideas and proposals made in informal groups would be carried forward in discussions next year. What these proposals are is unclear.

The Durban Mandate thus also includes the decision to extend AWG-LCA under the convention for one year and reach the agreed outcome pursuant to [Bali Action Plan] through decisions adopted by the 16th, 17th and 18th sessions of the COP, at which time AWG-LCA will be terminated. The two tracks have got a life of one more year but they will end with COP18 at Doha. Whether the AWG-KP succeeds with an effective SCP and more ambitious targets for Annex 1 countries remains to be seen. But the AWG-LCA will just end as mandated at Durban without any substantive movement forward on any of the four key elements of the BAP, which could have a serious impact on developing countries' efforts at mitigation and adaptation.

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