The verdict on Durban – a major step forward, but not for ten years

Following the marathon negotiations session at Durban, all the delegates should now be back home – and if not quite rested, certainly ready to assess the outcome with the benefit of some distance. In this (rather long) post I will look at the key documents agreed in the Durban outcome, and try to offer some sense of what they mean for the climate regime, and for the climate. (Apologies for some jargon, and for unexplained acronyms, which should be familiar to anyone following the negotiations, and without which this post would be even longer still.)

The Durban mandate

During the second week of COP17 the South African presidency operated an ‘Indaba’ system of high-level meetings, where an options paper was gradually whittled down into a decision text on the crucial issue of the future legal form of the UNFCCC regime. Various iterations of this paper produced some rollercoaster ups and downs from the perspective of a small islands state delegate (as advisor to the President, I once again joined the Maldives delegation). The final version, agreed in the small hours on Sunday 11 December – nearly 48 hours after the COP was supposed to have concluded – is titled ‘Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action’ (PDF link).

Some background: one of the most striking changes seen at Durban on the political climate landscape was the emergence of a new coalition, comprising of the EU, the small island states and the LDCs (least developed countries), working together to try to corral the major emitters (BASIC + the US) into a new legally-binding treaty which would include all parties, and would become operational as soon as possible. This coalition somewhat eclipsed the previous Cartagena Dialogue progressive coalition, and – thanks in particular to the stiffer spine showed by the EU – was surprisingly successful in terms of the outcome.

Here is the second preambular paragraph:

Noting with grave concern the significant gap between the aggregate effect of Parties’ mitigation pledges in terms of global annual emissions of greenhouse gases by 2020 and aggregate emission pathways consistent with having a likely chance of holding the increase in global average temperature below 2 °C or 1.5 °C above pre-industrial levels

This is an important admission because it references for the first time the ‘gigatonne gap’ identified by UNEP (PDF link) and mentioned in interventions by many of the small and more vulnerable parties (including several by the Maldives). It also acknowledges the possibility that the global goal of the regime – so far pegged to two degrees above pre-industrial – may need in future to be strengthened to 1.5C, again a key demand of the AOSIS and LDCs groups.

The first operational paragraph decides that the unfinished business of the AWG-LCA should be concluded this year, and that the LCA will therefore be wound up at COP18. This means that the Bali Action Plan agreed back in 2007 – and supposed to have been concluded during the ill-fated COP15 in Copenhagen – will finally be finished.

The second operational para is probably the most important to emerge in any Durban document, in terms of what the meeting was supposed to achieve, and what it means for the future:

Also decides to launch a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the United Nations Framework Convention on Climate Change applicable to all Parties, through a subsidiary body under the Convention hereby established and to be known as the Ad Hoc Working Group on the Durban Platform for Enhanced Action;

The importance of this to the future of the UNFCCC cannot be overstated. This paragraph heralds the end of the Kyoto system of emissions targets only for industrialised-country parties and looks forward to the dismantling of the Annex 1/non-Annex 1 ‘firewall’ system through a new legal regime “applicable to all parties”. I and many others have been arguing for some time that the firewall is outdated and must be scrapped, and that the Convention principle of ‘common but differentiated responsibilities’ must be interpreted as a dynamic concept in the light of changing economic realities. The fact that this made it into the outcome is a massive concession by the BASIC group, and by China and India in particular. In essence this reverses the Chinese ‘no’ from Copenhagen, and cements the flexibility China signalled to the press as the high-level negotiations got underway in Durban.

Also of enormous importance in that paragraph is the nature of the legal regime that is anticipated. Since COP15, AOSIS has proposed that the Convention track should end in a new Protocol, as the strongest legal type of treaty. However, parties were unable to agree on this, hence the options of “another legal instrument” and “an agreed outcome with legal force”. It is very significant however that all of these options included the L-word, as this means that a strong, rules-based multilateral regime is very likely to continue into the future – even as the Kyoto Protocol is consigned to history (more on that in a minute).

Timelines to a treaty

Next, to the crucial issue of timelines – and here the Durban outcome is less of a cause for celebration. AOSIS and the LDCs were looking for negotiations on a legally-binding outcome to be launched next year, and hopefully to conclude at COP18. Admittedly this was optimistic, but it made sense as the opening offer. The EU however had its own timeline, aiming for a ‘Durban Mandate’ to be given at COP17, ending in a fully legal agreement by COP21 in 2015, to become operational as soon as possible thereafter. The US, along with India and China, instead argued forcefully that a post-2020 regime was all that could be considered.

This was a triple red line for AOSIS, because nine years is an awfully long time to wait for a new treaty, particularly when the next decade is so critical in terms of emissions paths and eventual temperature outcomes (e.g. global emissions must peak by 2015 to have a reasonable chance of 1.5C, and so on). However, thanks to the EU’s vagueness on this issue – due probably to its own internal dynamics, where 2020 targets have already been agreed and enshrined in European law – the major emitters won the day. Paragraph 3 decides that the Durban Platform AWG will begin its work “as a matter of urgency in the first half of 2012”, whilst para 4 says the following on the longer term timeline:

Decides that the Ad Hoc Working Group on  the Durban Platform for Enhanced Action shall complete its work as early as possible but no later than 2015 in order to adopt this protocol, legal instrument or agreed outcome with legal force at the twenty-first session of the Conference of the Parties and for it to come into effect and be implemented from 2020;

In my view the very mention of 2020 is unnecessary and represents a big defeat for the LDCs and AOSIS, because it appears to foreclose the possibility of negotiating a treaty for earlier implementation, even were this to become politically achievable. It is on the other hand a victory for the US, whose own political straitjacket on climate seems unlikely to loosen before 2020, and for India and China, which are unwilling to go straight into a new legal arrangement of comparable targets – given that only a couple of years back they expected the Kyoto Protocol system to protect them from such an arrangement more or less indefinitely.

Mitigation – a lost decade, or a decade of doing?

This is of great importance too for the climate, because it means that mitigation ambition and the legal nature of targets are separated for a decade at least. Until a new treaty is in force after 2020 all we have on the table are the voluntary pledges offered after Copenhagen and inscribed properly in the Cancun Agreements a year later. Whilst Durban ensures that voluntarism (the so-called ‘pledge and review’) should be a passing phase, for another ten years this system is what we have – and we need to ensure that it is a decade of doing rather than a lost decade.

There is some cause for optimism here, as 80 or so countries have made pledges of varying degrees of ambition. These are laid out in two separate Appendices linked to the Copenhagen Accord – Appendix I for developed country parties, and Appendix II for the ‘nationally appropriate mitigation actions’ of developing country parties. It is the aggregate level of ambition of these pledges (or the lack of it) which is the subject of the UNEP gap study, which concludes that there is a gap of roughly 12 billion tonnes of CO2-equivalent between what is so far pledged before 2020 and a ‘likely’ outcome of staying below two degrees.

Durban shows that the only way to tackle this will be through a period of confidence-building and multilateral assistance to ensure that these pledges are met and hopefully increased. The Maldives and several other countries have pledged carbon neutrality, for instance, but will need help – including new technologies which are yet to be invented or scaled up – if they are to achieve it.

It is in recognition of this that the final three paragraphs of the Durban Platform agreement address this need to raise ambition, referencing the IPCC AR5, the 2013-15 Review, and, in particular, para 7:

Decides to launch a workplan 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;

Don’t forget Kyoto

Underlying all the negotiations over the past several years has been the issue of ‘balance’ between the two tracks launched in Bali – the LCA under the Convention and the Kyoto Protocol track. In my view Durban represents a surprisingly early defeat for the proponents of the ‘Kyoto or bust’ position that I criticised in an earlier post written before I arrived in Durban. Almost all developing countries – for varying reasons – wanted to see a second commitment period of Kyoto agreed in Durban which could be ratified during 2012 and come into force on 1 January 2013 to avoid a gap between it and the first commitment period.

The Durban KP outcome, however (PDF link), does not give us anything like that degree of clarity. It is quite notable therefore that BASIC signed up to the prospect of a legal outcome under the new Durban Platform without much being given in return on the KP track. In essence it is now clear that Kyoto is dying – already irrelevant in terms of mitigation, it will become increasingly irrelevant in political terms too.

A preambular paragraph makes an important statement about Annex 1 mitigation ambition, reminding us that Annex 1 emissions need to be 25-40% below 1990 levels (according to the IPCC AR4). Then, the first operational paragraph:

Decides that the second commitment period under the Kyoto Protocol shall begin on  1 January 2013 and end either on 31 December 2017 or 31 December 2020, to be decided  by the Ad Hoc Working Group on Further Commitments for Annex I Parties under the  Kyoto Protocol at its seventeenth session;

This is what is known as the ‘political’ second commitment period (despite the length, either of 5 or 8 years, still not having been agreed), to begin without either ratification of any amendments to Kyoto nor the inscription of new QELROs (quantified emissions reduction obligations). It is a face-saving compromise which does not in reality save much face.

Para 3 merely “takes note” of the proposed amendments to Kyoto which would inscribe new QELROs for the second commitment period; para 4 also “takes note” of the pledges already on the table which – according to para 5 – may or may not be inscribed as new commitments:

Invites Parties included in Annex I listed in Annex 1 to this decision to submit information on their QELROs for the second commitment period under the Kyoto Protocol by 1 May 2012 for consideration by the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its seventeenth session

Note that parties are merely ‘invited’ to submit ‘information on’ their QELROs, which is hardly a guarantee that they will go the full distance. Subsequent paragraphs note that agreement has still not been reached on the key issues of LULUCF (land use, forestry) loopholes, nor the carryover of Eastern European/Russian ‘hot air’ from the first commitment period. In my view, because these combined represent several more billions of tonnes of emissions, they make Kyoto worse than useless unless closed.

On the key issue of balance here – and noting that I am not a lawyer and could be wrong in my interpretation here – my reading of this is that the Durban Platform outcome gives a strong mandate for an eventual legal treaty within which “all parties” are included, whilst the KP outcome brings in a political second commitment period of undefined length and with no guarantee that it will contain any QELROs to make it relevant in terms of mitigation. Either way, this Kyoto will be a fig-leaf – the main game of mitigation action has moved elsewhere. (For the record, I think that Kyoto parties should inscribe QELROs – since BASIC have now agreed to the LCA outcome, they should deliver on their side of the bargain, for a five-year – and final – commitment period.)

Finance and the LCA outcome

What happens over the next decade and beyond in terms of mitigation depends an awful lot on money. Here Durban was a success in terms of agreeing a finance package, which properly establishes the Green Climate Fund – with the World Bank as interim trustee – together with all of the various governance arrangements it will need (PDF link). Many observers have criticised it for being an ’empty shell’ given that there are no guaranteed long-term sources of funding to make up the mandated pot total of $100 billion a year. This is true, but can be addressed at future sessions – the fact it was not resolved in Durban is not fatal.

For the LCA issues other than legal form, a weighty document of 130 pages at the beginning of the Durban second week was eventually reduced to 55 (including Annexes) but only because most of the contentious decisions were put off for later (PDF link). Of great interest to small island states and other vulnerable parties (and, to my mind, the entire planet) is the text on ‘shared vision’, which agrees neither a long-term goal for 2050 emissions reduction, nor a timeframe for peaking.

There is some progress on adaptation, capacity-building and accounting issues, but less so on REDD+ and the Review. Watch these spaces for developments at next year’s intersessionals and COP18, which is of course due to be held in Qatar. The latter is perhaps the highest per-capita greenhouse gas emitter in the world, and has a GDP per person of more than $60,000 – and yet is still a non-Annex 1 ‘developing country’ party. This will emphasise once again how important it is that Durban delivered a mandate which will finally enable the climate regime to transition out of its 1992 economic freeze-frame, and into a different system of differentiated legal commitments applicable to all parties.

That won’t come into force until 2020, it now seems – but over the next decade we all have a lot of work to do; both in terms of designing the new system and getting on with the all-important business of real-world mitigation. Durban delivered that mandate, and there is no time to lose on implementing it.

© Mark Lynas
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