The clash of paradigms in Durban
The UN climate negotiations in Durban proved to be painfully protracted because parties had different paradigms on the substance and shape of a fair and effective climate change regime. Meena Raman delineates the deep differences which emerged during the debate before they were papered over with an ambiguous compromise.
THE main outcome of the two-week Durban climate change conference was the launching of a new round of negotiations known as the Durban Platform aimed at a new regime (whether a protocol or other legal instrument or an agreed outcome with legal force) under the UN Framework Convention on Climate Change (UNFCCC) and involving all countries.
The draft decision on this was provided at an informal plenary late on the night of 10 December, long after the conference was scheduled to end and when many ministers and senior officials had already left Durban.
It was given to participants as part of a package of four decisions on a take-it-or-leave-it basis, with little time for the members to consider or discuss among themselves, in an unusual and unprecedented set of procedures.
The decision on the Durban Platform and how it was reached will be debated for a long time to come. It was also unusual how a decision to launch such an important negotiation was made with very little terms of reference to frame the talks or the outcome that will emerge from them.
The details of the terms of reference are now scheduled to be worked out in the coming year. Given the circumstances in which the Durban Platform was launched, these talks on the framework to underpin the new regime can be expected to be tough and lengthy.
This is especially because different Parties to the UNFCCC have different paradigms on the substance and shape of a fair and effective climate change regime.
Many of the differences were papered over in the take-it-or-leave-it decision-making mode of the final plenary meetings at Durban. The objections of developing countries, especially to many parts of the reports and decisions from the Ad Hoc Working Groups on Long-term Cooperative Action under the Convention (AWGLCA) and on Further Commitments for Annex I Parties under the Kyoto Protocol (AWGKP) were simply brushed aside by the working group chairpersons (officials from the US and New Zealand respectively) and by the conference president herself.
However, the basic differences were most evident in the discussions on the reports of the working groups, and on the draft decision on the Durban Platform during the plenary meetings on 10 December night and 11 December morning that preceded their adoption.
At the informal plenary discussion on the Durban Platform, the highlight was a lengthy and eloquent plea by the Indian Environment Minister for equity to underpin any future regime, following a call by the European Union's chief climate official to alter the draft decision to ensure that the outcome of the new talks would be legally binding.
It was a long, intense and dramatic ending at the Durban climate conference, which concluded only around 7 am on 11 December when it was scheduled to finish on the evening of 9 December.
Negotiations were particularly intense over the push mainly by developed countries, led by the European Union, for a launch of a new process to develop a legally binding instrument aimed at mitigation efforts by all Parties, but without the usual reference (so prominent in previous such resolutions) to the principles of equity or common but differentiated responsibilities (CBDR). According to diplomatic sources, the United States was especially adamant that there be no references to these principles in the decision.
The draft decision proposed to the plenary by the South African Foreign Minister Maite Nkoana-Mashabane, in her capacity as President of the 17th session of the Conference of the Parties (COP) to the UNFCCC, was to 'launch a process to develop a protocol, another legal instrument or a legal outcome under the Convention 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'.
This draft had been the outcome of a series of closed-door talks over the last few days and nights among 20 to 30 Parties. The EU and other European countries and several developing countries, including the Alliance of Small Island States, were insistent on a legally binding regime (thus the terms 'protocol' or 'another legal instrument') whereas India and China wanted to add the third option of 'legal outcome'.
The third option was included in the final draft put forward by the COP 17 Presidency to the plenary. Although an appeal was made to accept the texts of the four decisions as a whole, the EU's chief climate official Connie Hedegaard asked for reopening the Durban Platform decision in order to cancel the third option of 'legal outcome'.
India's Environment Minister Jayanthi Natarajan then made a strong plea for all options in terms of the legal form of the new process to remain on the table, including a 'legal outcome' (instead of only a protocol or legal instrument as possible options), stressing the need for equity and the principle of CBDR to be the centrepiece of the climate change debate.
The Indian Minister appealed to Parties not to push aside equity in the Durban outcome, as this would be the greatest tragedy. The Minister was not prepared to give a blank cheque and sign away the livelihoods of the poor when she did not know what the document (from the new process) would contain.
India's position was supported by several developing countries including China, Pakistan, Bolivia, Egypt, the Philippines and El Salvador.
In the draft given to the final plenary, the new process of negotiations was to commence work in the first half of 2012 and was to be completed no later than 2015 in order for the adoption of a protocol, legal instrument or legal outcome under the Convention, applicable to all Parties, at the 21st session (in 2015) of the COP, and for it to come into effect and be implemented from 2020. The option of 'legal outcome' was the bone of contention.
At the plenary, following the plea by the Indian Minister to retain the 'legal outcome' option, the EU's Climate Change Commissioner Hedegaard proposed discussions with India on how to accommodate the latter's concerns over the issue of equity.
The COP 17 President Nkoana-Mashabane then proposed a suspension of the session (at around 3.30 am on 11 December morning) for an 'informal huddle' between the EU and India to discuss this issue. This huddle soon saw many other Parties joining the discussions, including the United States, China, and Brazil.
According to one source who witnessed what took place, India was willing to take out the words 'legal outcome' if the principles of equity and CBDR were incorporated in the document. According to the source, the EU was willing to accept this but US chief negotiator Todd Stern opposed this and said that equity and CBDR 'will never fly' for the US and thus blocked an agreement between the EU and India.
Following further wrangling, in the final compromise, the words 'legal outcome' were replaced with 'agreed outcome with legal force', which was suggested by Brazil's chief negotiator, Ambassador Luis Figueiredo Machado.
This left many wondering what the difference, if any, was between 'legal outcome' and 'outcome with legal force.'
What was most worrying for ministers and senior officials from several developing countries who were interviewed was that the Durban climate talks were marked by an attempt by developed countries to push aside the principles of equity and CBDR, especially on the issue of launching the negotiations for a new regime. The US in particular was opposed to any reference to equity and CBDR in the decision to launch the new process.
Despite the explicit absence of the words 'equity' and 'CBDR' in the text, several lawyers and senior negotiators were of the view that a protocol, legal instrument or agreed outcome with legal force under the Convention must be consistent with the existing principles and provisions of the Convention and therefore the principles of equity and CBDR can be implied to apply. However, this view can be expected to be challenged, especially by the United States, when the negotiations start.
The EU's strong push for a new mitigation treaty came as a quid pro quo for it to undertake a second commitment period under the Kyoto Protocol (KP) for emissions reductions. A decision was also adopted on the Kyoto Protocol on 11 December morning. It however fell short of confirming a second commitment period of the Protocol.
According to one expert observer, the language of the Kyoto Protocol decision was only of the nature of 'taking note' of the 'intention' of Parties to convert targets to real commitments 'with a view' to adopting them at the next climate conference in December 2012. It thus remains to be seen if the commitments will be made, and, if so, what the numbers and substance will be.
In return, developed countries succeeded in securing a new process of climate talks on mitigation efforts by all Parties, without explicit reference to equity and CBDR.
The often heated exchange on the Durban Platform took place at a joint informal meeting of COP 17 and the 7th session of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP) which was convened by COP/CMP President Nkoana-Mashabane late on 10 December, following the closing sessions of the AWGKP and AWGLCA.
Nkoana-Mashabane outlined the elements of what she called the 'Durban package', which were (i) the second commitment period (2CP) for emissions reductions by Annex I Parties under the KP; (ii) a decision on the work of the AWGLCA; (iii) a decision on the Green Climate Fund (GCF); and (iv) an agreement on the Durban Platform for enhanced action.
Nkoana-Mashabane asked Parties to adopt each of the decisions without further debate and amendments when they were presented during the formal sessions of the COP and the CMP respectively, saying that Parties required 'assurances from each other to agree to all the draft decisions', clearly suggesting a 'take-it- or-leave-it' approach. She said that this was needed to 'make history and strengthen multilateralism'.
Several delegations expressed frustration that their concerns were not heard when they were first raised during the closing sessions of the AWGKP and the AWGLCA prior to the joint informal meeting of the COP and CMP.
Hedegaard said the EU had a point of utmost concern on the Durban package. What was within reach was a legally binding deal or a prospect for such a deal. For the EU, there was a need for a legally binding deal as voluntary means (in relation to emissions reductions) were not enough and international legislation was needed. She said the KP did manage to reduce emissions. The EU wanted further progress through another protocol or legal instrument but was concerned about the words 'legal outcome' as this put in doubt whether Parties were ready to commit (to emission cuts). She said that the EU was ready to commit to a 2CP for another five years and was almost alone in the KP. It was not too much for it to ask that after the 2CP, all Parties (including the US and developing countries) would be legally bound to take emission cuts under a single legal instrument or protocol by 2018.
Colombia supported the call by the EU and wanted a legal instrument under the Convention by 2018. Switzerland also expressed similar views, saying that this was a new page in history.
India's Minister of Environment and Forests, Jayanthi Natarajan, in a passionate and strong response to the EU, said equity was a centrepiece in the debate on climate change not only for India but also for the entire world. She said many Parties came to her in different tones and voices and told her that unless she dropped the option of a 'legal outcome' (in relation to the Durban Platform) India would be blamed (for blocking the negotiations). She asked what the problem was in adding one more option.
The Indian Minister said that she would not be threatened by intimidation. Referring to calls for a legal instrument, she asked how she could give a blank cheque and sign away the livelihoods of the poor (and not lifestyles of the rich) when she did not know what the document would contain. She asked where the principle of CBDR was reflected and had no doubt that efforts were being made to shift the entire burden of climate change onto countries that did not contribute to the problem.
Referring to the Durban Platform document, she said it was weak on CBDR as it referred to 'launching a process to develop a protocol or another legal instrument or a legal outcome under the Convention applicable to all Parties.' Natarajan emphasised that she represented 1.2 billion people and that India had a tiny per capita carbon footprint of 1.7 tons and its per capita GDP was also low.
She said that India must not be made a scapegoat of the multilateral process. Referring to the Durban Platform document, she said that it was a product of six days of talking and all ideas were put forward and what was captured in the document was the sense of the Chair.
She reminded Parties that India had placed the issue of equity on the agenda of the COP but this was pushed somewhere else and was not in the main text (of the AWGLCA outcome document). She made a plea for the issue of equity not to be held hostage and said that it would be a grave tragedy if equity was put aside in Durban.
She appealed to Parties to allow the word 'outcome' to remain in the Durban Platform document as a further option. She asked how this could be a crime and how India could be accused of collapsing the talks.
Xie Zhenhua, Vice Chairman/Vice-Minister of the National Development and Reform Commission of China, in a very strong response, supported India. He said that the existing Convention and Protocol are legally binding but questioned if Parties were implementing them. The existing legal instruments spell out the principles of CBDR, respective capabilities and equity. To deal with climate change, all countries need to collaborate towards common goals, in accordance with respective capabilities, strengthen cooperation, and respond collectively. Till now, some countries have made promises, but have not fulfilled them. They have not taken real actions. Xie said developing countries need to develop, protect the environment, mitigate climate change and eradicate poverty. Developed countries have to fulfil their promises, take concrete actions, and truly achieve the objectives in coping with climate change. Developing countries do not care what they are saying but need to see what is being done. Many developed countries have not fulfilled their promises. 'We have done what we are supposed to do, whereas they have not done their part. What position are they in to judge us?'
Grenada, speaking for the Alliance of Small Island States, said that they wanted a 2CP with meaningful numbers under the KP but did not get that in Durban. Hence, the effort was to bring up the ambition level through the legal form. Referring to the options in the Durban Platform document, it said that it was difficult to accept the option of 'legal outcome' as it appeared to be an option for climbing down the ladder in terms of mitigation ambition by allowing countries to continue on the track that brought climate change. If there was no legal instrument, Parties would be relegating vulnerable economies to death, with beautiful words such as 'access to development'. It said that if 'they develop we die'. It could not accept terms with no limits on emissions.
Bolivia, in supporting India, said there is a need to think of commitments to emission reductions but also to address the right to development, right to food, right to eradicate poverty etc. The work of the new working group for the Durban Platform must address this. There is also the right of countries to equitable access to the atmosphere which has been used by a small group of countries. In an apparent reference to the US, Bolivia said that it is a paradox that a country with a large share of the emissions is not in the KP. When a legal regime is being built, Parties must be careful as to how the atmospheric space is distributed as those who are rich do not want to cut emissions while they want others to do this. The notion of a legal instrument applying to all must take into account poverty and the right to development. Behind the issues of emissions, there is wealth, misery and poverty and vested interests.
The Philippines was concerned that the Convention and the KP were in danger of being a relic of the past. It expressed deep concern that after over five years of negotiations on the further commitments for Annex I Parties under the KP, Parties had again fallen short of arriving at a ratifiable amendment to the KP's Annex B that would have ultimately gotten the Protocol out of intensive care and back into life. It was deeply concerned that Parties had come short of this and had once again procrastinated. Parties were expected to send a strong political signal to the world in the form of adopting fully ratifiable amendments for the establishment of the second commitment period of the Protocol. It was heart-broken to see Parties divided and made a plea for not pitting one against another. It said they were against one real cruel enemy - climate change.
The Philippines was for environmental integrity as well as for sustainable and equitable growth. It stressed that equity is a fundamental concept whose reflection in the processes will ensure a fair and just outcome that achieves the objective of the Convention. It was open to a legally binding instrument, as it agreed that a legal regime was important, but it should have been with a view to saving the KP which had not gotten out of intensive care.
Pakistan also said that it stood behind equity and CBDR. No matter how much the world has changed, CBDR is still applicable. It said that it was strange that there was no reflection in the document on equity and CBDR. It said that real consensus was when everyone was on board and that no single view should force others to submit. True multilateralism should have everyone on board.
El Salvador stressed the need to raise the level of ambition and address the finance gap, the mitigation gap and the equity gap. It hoped that the process launched in Durban would take Parties in the direction needed.
Brazil said that climate change is a huge challenge, as is fighting poverty, and no country has done more to reduce emissions than Brazil. On a legally binding deal, it said Parties were on the verge of approving potentially what was more than the Berlin mandate (where the process towards the KP was launched) and the adoption of the 2CP under the KP. It was open to a new era of cooperation.
Egypt, in response to the EU on the need for clarity (in relation to mitigation), said there was a need also for clarity on the issue of financial support with predictability, additionality and transparency. It said that developed-country Parties, who were calling for a new legally binding instrument, did not show the same passion for the KP. It also stressed the importance of equity and CBDR. It said that the form of the legal outcome should follow the function. There was a need for flexibility in the Durban Platform to allow for the form of agreement needed according to what agreements are reached.
Senegal supported Egypt and the need for CBDR. It said that the Durban package was weak.
Gambia, speaking for the least developed countries (LDCs), reiterated the need for a legally binding instrument that must provide for strong and binding enforcement to address all the pillars of the Bali Action Plan.
Bangladesh supported the Durban package and a legally binding deal, in addition to the 2CP. Although the texts (in relation to the decisions) had been watered down, it was prepared to accept them.
Norway shared the view of India that equity is important but wanted a legal instrument in 2015 and did not support a mere 'legal outcome'.
The US said it embraced the full Durban package, including the need for a new legal instrument.
The Democratic Republic of Congo, speaking for the African Group, said that in Durban, the KP did not die; there were outcomes on adaptation, financing, technology transfer and capacity building and the operationalising of the institutions of the Convention. It regretted the lack of ambition and balance but could support the move for further progress on increasing the mitigation ambition so that Africa was secure.
Malaysia said that it was not clear on how the outcome from the AWGLCA was going to be addressed when several Parties had pointed to a serious lack of balance and the need for further work before it could be adopted. It was looking for a good package that allowed the AWGLCA sufficient time to restore the balance needed next year.
The COP President did not address Malaysia's concerns.
The formal sessions of the CMP and the COP were then convened one after the other. At the CMP, several concerns were raised over the outcome of work from the AWGKP but these concerns were not addressed by Nkoana-Mashabane, who proceeded to gavel the adoption of the outcomes.
At the closing sessions of the AWGKP and AWGLCA held before the COP/CMP joint informal session on 10 December, many Parties had raised several concerns they had on the respective reports by the Chairs of the two working groups, which reflected the outcomes of the work. In the case of the AWGKP session, several developing countries wanted amendments to be made to the outcome document but none were entertained by the Chair, Adrian Macey from New Zealand, except for an amendment suggested by the EU on the duration of the 2CP from a five-year period (2013-2017) to an eight-year period (2013-2020). Both these options are now on the table. The report and the outcome of the work of the AWGKP was presented 'under the authority and responsibility of the Chair', which was unprecedented.
Likewise, in the case of the outcome of the work of the AWGLCA, the Chair of the working group, Daniel Reifsnyder from the US, ignored calls by several developing countries not to adopt the report and to allow for further work to be done next year on the outcome document to rectify the existing imbalances, especially when the document was only presented to Parties late in the morning of 10 December. The Chair did not agree with the proposal and proceeded to transmit the document to the COP President under his own responsibility although it did not receive consensus, which was also an unusual move.
During and after the Durban meeting, negotiators of many developing countries expressed deep concern about the procedures for adopting decisions at COP 17. The conference had been extended for almost two days, and ministers and officials of many countries had already left. The closed-door meeting of 20-30 Parties left many others that were not invited in the dark.
The documents for the decisions in the final plenary meetings were distributed late, and some Parties complained they did not have the papers. There was no time for the Parties to study the papers. The Chairs of the AWGKP and AWGLCA did not take into account the disagreements that most Parties registered on the draft decisions but decided to transmit their reports almost unchanged (the only changes were to accommodate the EU on the Kyoto Protocol) to the COP and CMP. When the COP and CMP meetings were convened, there was little opportunity to reopen the reports and some attempts made by developing countries were ignored, while the only opportunity to reopen was provided to the EU over the 'legal outcome' issue.
While COP 17 and CMP 7 did not fall apart as many had predicted in the last day of the conference, the manner in which the decisions were achieved may be debated, including what it means for the future of decision-making in a UN multilateral setting for years to come.
Meena Raman is a legal adviser and senior researcher with the Third World Network.
1. Editor's note: This is a reference to an advertisement in the 10 December edition of the Financial Times portraying India as one of four countries depicted as 'grim reapers' bringing climate death and destruction to Africa.
*Third World Resurgence No. 255/256, November/December 2011, pp 16-24