Prospects for a legally-binding international climate deal

With the glacial pace of the international climate change negotiations, it is easy to conclude that nothing ever changes. But a look back a few years suggests a different conclusion: things are moving, and the prospects for a medium to long-term legally-binding outcome in the UNFCCC process are now better than ever. Just don’t expect too much from the next COP in Durban.

Here are some of the bigger shifts. First, the prospects for a wide, inclusive ‘second commitment period’ (CP2) of the Kyoto Protocol – necessary after the first one runs out at the end of 2012 – have diminished considerably. Japan, Canada and Russia have stated definitively that they will stay out of any new Kyoto round, and there isn’t the slightest chance that the US will join. That leaves only the EU in the Kyoto-enthusiast camp, with Australia and New Zealand less enthusiastic but still prepared to consider a CP2 if other ‘big emitters’ take parallel action. However, this leaves Kyoto itself covering less than a fifth of global CO2 emissions with binding targets. Clearly something else is needed to control climate change.

This undeniable arithmetic brings us to the second point. Over the past few years it has become steadily more acceptable to talk about legally binding targets of some form for developing countries – those that, as ‘Non-Annex 1 parties’, were left out of the First Commitment period of Kyoto, which applied only to industrialised ‘Annex 1’ nations. The G77 + China group of developing countries still typically insists that a Kyoto CP2 is a precondition for moving forward on their own possible targets, but the rhetoric has been increasingly moderate of late, as the focus of the negotiations shifts away from Kyoto and back to the climate Convention, which includes all parties.

I have just returned from a meeting of the Cartagena Dialogue countries in Samoa, where perhaps the central topic was that of ‘legal form’ – the eventual shape of a treaty or combination of treaties which will cover everyone in one way or another. As well as a commitment to high ambition, this desire to craft a treaty which is as legally binding as possible is the main issue which unites the Cartagena Dialogue countries (which numbers about 40 nations, from various EU countries to Mexico, Colombia, Bangladesh, Maldives and Indonesia, from the G77 camp). And make no mistake: the prospects for keeping climate change within tolerable bounds depend on this more than anything else. There really is no alternative to united international action within a legally-binding framework.

The desire to get around the ‘Kyoto or bust’ impasse has led to some increasingly creative proposals. One that has particularly caught my attention comes from some EU parties, which are trying to find a constructive way to keep Kyoto alive whilst still making progress on the ‘Long-Term Cooperative Action’ (LCA) track under the Convention, which will eventually bring China, the US and everyone else into a more united framework. The idea is basically to take a longer-term view: a second commitment period would be launched only on the understanding that it would be the last (there will be no third commitment period, in other words) and that it should be seen as a transition process towards a single-treaty outcome from 2018-20 which will include everyone – Annex 1 and non-Annex 1 parties together.

It is already too late to prevent there being a Kyoto gap after 2012, so we urgently need to find some legal stop-gap measures to keep the treaty in force, and protect its useful mechanisms and accounting rules from disappearing. But the new idea is that the adoption of a Kyoto CP2 would need to be linked with the agreement of a formal mandate (plus a timeline) in Durban for a new round of negotiations towards a legal instrument that would include all parties. At last we can begin to look towards the day when the ‘Berlin Wall’ division between rich and poor countries, formalised first at the signing of the Climate Convention in 1992 but today increasingly an anachronism, becomes largely irrelevant. This does not mean getting rid of the vital ‘common but differentiated responsibilities’ principle, but it will allow for greater flexibility in rapidly changing times where the focus of emissions is shifting geographically as once-poor countries take their great economic leap forwards.

This will all take time, and 2020 is a long way away. But there is plenty to be getting on with, in terms of operationalising the Cancun decisions, and making progress on important accounting issues like MRV (monitoring, reporting and verification) of emissions, and implementing the pledges of emissions reductions that have already been made by almost all parties – even though these are not yet legally binding. There is also the matter of the Review of the Global Goal, due to be completed by 2015, which keeps alive the possibility of a much stronger ambition for mitigation (limiting temperature rises to 1.5C rather than 2C). Everyone knows that the window for actually achieving this is closing, however, given that global emissions must peak in the next few years to have anything but a slim chance of keeping warming to 1.5C. So the global goal negotiations can be an important driver of increased ambition even as the formal legal nature of the eventual regime remains undecided.

In conclusion, the political landscape is very different from the depressing situation the world faced at Copenhagen. There is much to do, and no-one should be complacent. But increasing numbers of developing countries are going straight for low-carbon development, and there seems to be a gradual shift in the climate narrative from mitigation being seen a burden to it being recognised as an opportunity. As China surges ahead in clean-tech options, the pressure on the US to follow suit can only increase. And in the process we can look forward to the day when the two leading global emitters join a legal framework which mandates them both to transition towards eventual carbon neutrality.

© Mark Lynas
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