Tag: Legal Issues

Getting the Durban Deal Done

ECO has been clear in its call for a three-part outcome in Durban: adoption of a strong second commitment period of the Kyoto Protocol; a mandate for negotiation of a more comprehensive and ambitious longer-term climate regime based on both scientific adequacy and the principle of common but differentiated responsibilities and respective capacities; and a package of decisions facilitating near-term action on all four building blocks of the Bali Action Plan and implementation of the Cancun Agreements.

Let’s make something else clear: building a long-term structure for fair and effective international action on climate change is important, but what really matters is meaningful action supporting peoples and communities already suffering the negative effects of climate change, and collective emission reductions at the scale and pace needed to avert even more catastrophic impacts in the future. The best legally binding treaty instruments in the world don’t amount to much without emission reduction ambition in line with the science and financial resources commensurate with the need.

 Coming out of Panama, there has been some progress in developing draft text on many of the elements of the Bali Action Plan and the Cancun Agreements.  But the prospects for linked agreements on extension of the Kyoto Protocol and the negotiations on a longer-term legally-binding instrument are not bright, absent significant changes in the negotiating positions of a number of key countries.  Let’s look at them in turn.

 EU.  Fair or not, the EU holds the key to the Durban outcome.  If the EU does not come to Durban with the clear goal of adopting a second commitment period (not some fuzzy political commitment) the Kyoto Protocol will wither and die.  On Thursday, the EU laid out a clear set of elements for negotiations over the longer-term treaty that would assure that a KP second commitment period is a bridge to a more comprehensive and ambitious legal framework. EU environment ministers need to be careful not to set overly stringent conditions for such negotiations when they meet next Monday in Luxembourg.  

 Australia and New Zealand. While the view from atop the fence is nice, these countries need to get off of it and make clear they are ready to join with the EU, Norway, and others in embracing a second KP commitment period.

 Japan, Russia, Canada.  These countries claim they are bailing out of Kyoto because it doesn’t cover a large enough portion of global emissions.  They need to come to Durban prepared to reconsider their position if agreement can be reached on launching negotiations on a longer-term treaty regime, or risk being perceived as multilateral treaty-killers, not treaty-builders.

 US. The one developed country that stayed out of Kyoto, in part because the Protocol didn’t include major developing countries, claims it is willing to enter into negotiations on a new legally-binding instrument.  But it has set very stringent conditions for the launch of such negotiations, while acknowledging that these conditions almost guarantee no agreement on a negotiating mandate in Durban.  Meanwhile, the US is struggling to meet its already inadequate emissions reduction commitment, and has been reluctant to discuss ways of meeting the $100 billion by 2020 annual climate finance goal its president committed to in Copenhagen.  At the very least, the US must contribute to such discussions in Durban, not attempt to block them.     

The LDCs and AOSIS. The moral power of the most vulnerable countries needs to be heard, highlighting both the existential crisis they face and the reprehensible failure of those responsible for the problem to face up to it.  These groups support both the extension of the KP and a mandate for negotiation of a new legally-binding instrument; they must continue to work together in Durban to achieve both of these goals.

The BASIC countries.All four of these countries are leaders in taking domestic actions to limit their emissions growth as their economies continue to rapidly develop.  Their leadership is also needed on the current fight to preserve a rules-based multilateral climate treaty regime.  They should certainly continue to demand a second Kyoto commitment period.  But they should also call the US’s bluff, by indicating their willingness to negotiate a more comprehensive long-term treaty regime including binding commitments for all but the Least Developed Countries, as long as it’s truly based on principles of equity and common but differentiated responsibility.              

 All countries must come to Durban prepared to negotiate in a spirit of compromise if we are to achieve the ambitious package of decisions needed to address the mounting climate crisis.  Ministers must take full advantage of their time together before Durban, at both the pre-COP ministerial consultations and the likely pre-Durban meeting of the Major Economies Forum, to explore constructive solutions to the current roadblocks to such a package of decisions.  Then in Durban, they must work actively under the guidance of the South African presidency to bring the deal home.  Their citizens need – and expect – nothing less.

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28 Mouths – 1 Voice

ECO truly appreciates that the European Union still supports the Kyoto Protocol (KP), and is heartened by the commitment of the EU to continue (what some might call) ranting about the importance of a legally binding regime. This week, ECO has been particularly pleased to see that the EU started to show some more readiness to accept a second commitment period of the KP. And ECO understands, from the EU’s stated preference for a comprehensive legally binding outcome of the future framework, that the commitments under the Protocol are going to be kept legally binding.

Of particular concern to ECO is that some representatives from particular European countries favor other positions. Understandably it can be hard to make 28 mouths express the same, clear and coherent position but this is, indeed, urgently needed.

ECO believes that the EU should fight harder to ensure that, in Durban, the KP will move into a legally binding second commitment period with broad participation and binding rules. How would anyone understand that the EU believes it would be easier to build a legally binding regime after abandoning the only legal building block we have?

It is in the EU’s, and the planet’s, own interest to ensure that its commitment to the Kyoto Protocol goes beyond a political declaration. Moreover, if the EU is really keen to get all countries to negotiate a legally binding outcome in the LCA, promoting a political commitment to the KP does not seem the best strategy. Increasing ambition means going up, not down.  

Next Monday, when the EU member states' environment ministers meet in Luxembourg, the EU has the chance to unambiguously put its position on paper and ECO believes the time has come to do so and take on a clear leading role. To accept and adopt a second commitment period of the KP does not require anything more than what the EU is already doing, so ECO would find it difficult to understand that the EU denied this breath of fresh air to the current climate talks.

ECO believes the EU could gain a lot if it could leave Durban as the Party that (once again) shaped the outcome of the COP and helped to save the only existing pathway to a global legally binding agreement.

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Lackofambitionitis

One thing that developed country delegates might want to report to their ministers back home is how they spent the full week talking about measuring, reporting, and verification. This was done instead of getting serious about their need to increase their levels of ambition. The signs of chronic lackofambitionitis are clear and have dire 4°C symptoms –  including rising sea levels, disruption of food production, forest fires, increasing droughts and much more.

 The gigatonne gap, which negotiators have left largely untouched in Bangkok, Bonn and again in Panama, is now up to the ministers to pick up. Of course, it can still be hidden under the carpet of a number of technical COP decisions on mitigation, but ECO can’t believe anyone will be thinking that this related disease has been even remotely addressed.

 The cure is simple but requires a steely resolve.  Acknowledging the magnitude of the gap and resolving to close it, is the first step that ministers can take as they fly to South Africa for the pre-COP. A second step would then be to move the mitigation ambition to the upper end of the pledges. Extensive research has shown that countries like Australia and the EU can both reduce the symptoms of the broader disease and improve their own economic health by moving to the upper end of their pledges. Of course, the cure requires other countries to do more and thoroughly review their pathetic low pledges. This is the case for Canada and the US neither of which is planning to reduce their emissions much below their 1990 levels. And this is also the case for countries as Russia, Ukraine and Belarus whose pledges would assume emissions that are much higher than all business-as-usual projections. Preventing the deadly effects of lackofambitionitis requires industrialized countries to move their emission reduction targets to the upper end of the 25-40% pledge that was agreed in Cancun. We know that the cure is within reach as countries like Denmark, Norway, Germany and others have shown the way and thus deserve to be recognized as leaders in a race to the top.

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Informing Legal Form

Judging by the number of delegates and observers crowding the room over the last two days, there is certainly a keen interest in the legal form of the LCA outcome.  ECO welcomes these discussions and urges the Parties to build on the bare bones outline of legal form options presented yesterday, by adding specific content that can inform deliberations in Durban.   ECO is impressed by the surprisingly constructive tone and substantive content of the discussions.  We can only imagine what would happen if a second commitment period under the KP were  adopted!   

While we recognize the often repeated line that form should follow function, we echo Colombia’s point that negotiators need some sense of where they are headed – a political declaration is very different from a long-term binding regime.  ECO is appreciative that the meetings of the group are open to observers. We note however, that some confusion remains concerning the degree of “bindingness” of different legal options.  We offer the brief table below to clarify.

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