INFOCUS | INDIA-CHINA | ENVIRONMENT | COVER STORY
Caught in DEVELOPED & DEVELOPING WORLDS
semantics
Climate change is a matter of justice. The richest countries caused the problem, but it is the world’s poorest who are already suffering from its effects. In Durban, the international community should have committed to righting that wrong. But instead it got caught with semantics. |24| India-China Chronicle
B
efore the Climate Talks began at Durban in December, 2011, it was speculated that the country groupings will have a major role to play towards a constructive outcome at the seventeenth Conference of Parties (Cop 17). It was understood that the Durban outcome would largely depend on the interplay among the BASIC (Brazil, South Africa, India and China), the EU and the much larger group of developed countries led by the US and comprising Russia, Japan, Canada, Australia and others who have been historically been opposing legally binding carbon reduction commitments. The BASIC group has always maintained that it cannot be treated on an equal footing with the developed countries on emission cuts because of its ‘developing world’ status. At the same time it would not let go off the US and others to share a greater responsibility for their historic emissions responsible for the current climate crisis. However, post Cancun, the EU and others in the developed country groups have been increasingly asserting that ‘all emerging economies’ should take legally binding emission cuts. With green house gas emissions increasing five times faster in China, making its per capita emissions close to Western Europe, South Africa’s emissions being even higher than China, and India and Brazil having low emissions comparable to the world’s poorest countries but rising at an accelerated
five times higher than its earlier emission rates, BASIC represents a group where its emissions, put together, are growing much faster than the world’s. Based on such statistics, the pressure on BASIC has been to accept obligations identical to those imposed on the North. Those in the group, especially India and China, have been resisting this pressure on the principles of equity and Common but differentiated liability (CBDR). Brazil and South Africa howevr were ready to accept binding obligations in return for finance. But China and India responded to such pressures by adopting voluntary measures and country specific Climate Action Plans for reducing carbon emissions intensity of their GDP by 40-45 per cent and 20-25 per cent respectively by 2020.
Shawahiq Siddiqui Advocate in the Supreme Court and is part of the team drafting the Renewable Energy Law
Of Kyoto and Climate Debt The Kyoto Protocol is the world’s only effective document that provides for binding emission cuts. Kyoto differentiates between the North and South’s responsibility for climate change and mandates that the North, responsible for 75 per cent accumulated emissions, repay its climate debt. It imposes a modest five per cent cut of its 1990 level on the global north. Kyoto’s effective early phase—‘first commitment period’—that imposed mandatory emission cuts ends in 2012. The Annex 1 countries
April 2012 India-China Chronicle |25|
INFOCUS | INDIA-CHINA | ENVIRONMENT | COVER STORY
have been resisting the extension of Kyoto. The US never ratified it but still had been making attempts to kill Kyoto and replace it with a ‘new climate regime’ until the survival of Kyoto was made central to the success of the climate talks at Durban.If the stand on the North’s historical liability for climate change has to be sustained, extension for the second commitment period of Kyoto is necessary. The European Union, though positive in the earlier stages of climate negotiations during Bali and Copenhagen had somewhat weakened the Kyoto’s fundamental premise of the North’s obligation for a more responsible action by asking for similar binding cuts for the emerging economies, without which it would not support the second commitment period of Kyoto. On the other hand developing countries had been sticking to their stand on ‘common but differentiated liability’ and had made the second commitment period a precondition for Durban’s success. Durban even before its start had feared to become another Copenhagen, where all major claimants and perpetrators of climate change colluded to write an atrocious deal to adopt voluntary national pledges that were founded on dubious economics and have come to reveal as massive scandals, replete with over-ambitious emission cuts, misreporting, loss of valuable public subsidy and |26| India-China Chronicle April 2012
fictitious projects. Therefore, Durban was likely to fall in any of the following three options: (1) Carrying forward the previous framework developed in Copenhagen and Cancun without any significant political breakthroughs and legal pledges; (2) Moving to a more voluntary ‘non legally binding’ commitment period under the Kyoto Protocol; and a scenario where the EU would not move a step forward with a legally binding outcome, (3) The agreement to a Kyoto Protocol’s second commitment period for developed countries as already provided under Kyoto as well as initiating a new mandate for all major developing economies.
the next year. Though the Durban talks agreed unanimously on extending the KP period which was considered crucial for any future viable climate deal, there are exceptions to it. The Annex I countries namely Japan, Russia and Canada will not take any emission reduction targets for the second commitment period of KP. This will have a potential impact on the total global emission reductions which were targeted to be less than 20 per cent. The role of India and China in the Durban negotiations assumes significant role as both countries have significant emission rates but have been playing the developing country card to which the EU was not willing to agree. Though China agreed to consider the legally binding agreement, India took affront to any such commitment on the grounds that agreeing to any such legally binding climate deal would mean to sign away the livelihood of millions of poor people in the country and that issues of equity could not be put away by the Durban Process. Though both countries constructively engaged on the issue of a legally binding outcome and stood together at times in the face of strong opposition to the demands of the “EU Road Map,” they were supported by developing countries from the Alliance of Small Island States (AOSIS) and Least Developed Countries. The EU had offered a second commitment period of the Kyoto Protocol but only under the condition that a new global agreement including all countries would be needed to be agreed upon as well. EU’s Formula The EU initially played a very positive role in the climate talks but since Cancun, has turned
conservative. The EU had been maintaining that it would support second commitment period only if the Durban summit agrees to binding cuts for emerging economies. The developing countries were very annoyed with this stand of EU as it meant obliterating the North’s historical responsibility for climate change and therefore had made Kyoto second period a precondition for Durban’s success. However, the EU could achieve a change in the semantics of the Durban Outcome. Instead of a ‘legally binding outcome,’ it agreed for an “agreed outcome with legal force,” suggested by Brazil’s chief negotiator, Ambassador Luis Figueiredo Machado.After EU, India, China and other countries agreed on the choice of words which would lead the course for different legal options for a global climate agreement. However, the exact form of outcome with legal force is still to be discussed in future negotiations which will conclude in 2015. The Scientific Perspective From a scientific perspective, the current 2020 mitigation targets are not ambitious enough and the global mean warming would reach about 3.5°C by 2100 with the current reduction proposals on the table. As reported in the recently published UNEP emissions gap report, current pledges by developed and developing countries will mean that by 2020 global emissions will be 6-11 Gigatonnes of CO2 equivalent, higher than a 2°C emissions trajectory. Current pledges by developed countries fall far short of what is needed as they add up to no more than 12-18% reductions below 1990 by 2020. What environmental groups as well as the Intergovernmental Panel on Climate Change (IPCC) require is
IF CLIMATE CHANGE HAS TO BE SUSTAINED, EXTENSION FOR THE SECOND COMMITMENT PERIOD OF KYOTO IS NECESSARY. THE EUROPEAN UNION, THOUGH POSITIVE IN THE EARLIER STAGES OF CLIMATE NEGOTIATIONS DURING BALI AND COPENHAGEN HAD SOMEWHAT WEAKENED THE KYOTO’S FUNDAMENTAL PREMISE OF THE NORTH’S OBLIGATION FOR A MORE RESPONSIBLE ACTION BY ASKING FOR SIMILAR BINDING CUTS FOR THE EMERGING ECONOMIES, WITHOUT WHICH IT WOULD NOT SUPPORT THE SECOND COMMITMENT PERIOD OF KYOTO
What Transpired The Durban climate negotiations spanned for 16 days, longest in the history of the United Nations Framework Convention on Climate Change (UNFCCC). The parties adopted a “package” which included as its main elements an amendment to the Kyoto Protocol (KP), the decision to negotiate a global climate change agreement by 2015 and operationalizing the Green Climate Fund.The amendment to KP is an agreement for a second commitment period, starting in 2013. Whether the duration of the second commitment period will be five years or eight years will be decided over the course of |27|
INFOCUS | INDIA-CHINA | ENVIRONMENT | COVER STORY
that developed countries move into the 25-40% range, as a first step, and subsequently to more than 40% below 1990 by 2020.
THOUGH CHINA AGREED TO CONSIDER THE LEGALLY BINDING AGREEMENT, INDIA TOOK AFFRONT TO ANY SUCH COMMITMENT ON THE GROUNDS THAT AGREEING TO ANY SUCH LEGALLY BINDING CLIMATE DEAL WOULD MEAN TO SIGN AWAY THE LIVELIHOOD OF MILLIONS OF POOR PEOPLE IN THE COUNTRY
An Agreed Outcome or a Green Wash The Durban outcome is referred to as “an agreed outcome with a legal force.” However, the legal nature of this outcome has been left undefined. The final broad component of the COP 17 decision, the Durban Mandate constitutes the following: (i) the Second Commitment Period (SCP) for emissions reduction by Annex-I countries under the Kyoto Protocol; (ii) a decision on the work of the Ad Hoc Working Group on Longterm Cooperative Action (AWG-LCA); (iii) a decision on the Green Climate Fund (GCF); and (iv) an agreement on the Durban Platform. This agreed outcome will be developed by an Ad Hoc Working Group on the Durban Platform for Enhanced Action (AWG), which will begin work in the first half of 2012. The AWG will formalize the legal regime not later than 2015, the year in which it will be adopted. As stated that the Durban conference was most likely to fall within the three possible scenarios viz moving on with business as usual with Copenhagen and Cancun framework, defying Kyoto by agreeing to non legally binding nature of the commitment for its second phase and the third and most unlikely one being agreeing to extending Kyoto and bringing all major economies to an agreement for a legally binding mandate. Various climate gurus have interpreted the Durban outcome as very close to the third scenario i.e. an in-principle agreement by all for a legally binding regime for carbon emission cuts. For the triumph of optimism, if this is construed to be the best positive interpretation of COP 17 then in doing so did the global community put the planet at risk? This is a question that only science can answer. However, science seems to have lost to the complexities of legal interpretation on ‘legal outcome’ and ‘agreed outcome with legal force’. Whatever may be the phrase, the substantive outcome is the delaying of any concrete action with commitment and responsibility by the developed and developing world. All that the nation states agreed in Durban is to launch a new negotiating process to develop a “protocol, another legal instrument, or agreed outcome with legal force,” that will address the post-2020 period and will be “applicable to all parties.” In addition to this Kyoto Protocol is extended by another 5-8 years without any clarity on emission targets for its second commitment period, thus rendering it only a basic political decision. In addition to this, parties agreed to establish a Green Climate Fund and transparency rules for the developed and developing countries.
|28| India-China Chronicle April 2012
Role Played by China, India The outcome seemed unlikely because there was little indication that China and India would agree to negotiate a new agreement to limit their emissions. Without any agreement from China and India, the United States had said that it would not agree to a new round of negotiations. And without agreement by the United States, China, and India, the European Union would not agree to a second commitment period under the Kyoto Protocol. What allowed the Durban outcome was a careful compromise that gave BASIC countries, on one side, a 2020 start date for the new agreement and some ambiguity about its legal character (about which more below), and gave the EU, small island states and least-developed states, on the other side, early start and end dates for the negotiations (the negotiations will begin next year and conclude in 2015) and language that the outcome of the new negotiations will have “legal force.” Interestingly, the United States apparently played something of an intermediary role, since it had some flexibility about the issues of both dates and legal form. In the end game of Durban, India was unwilling to accept a mandate to negotiate a “protocol or another legal instrument,” and preferred the formulation of a “legal outcome.” The United States suggested “outcome with legal force,” India added “agreed,” and the EU said ok. Thus the deal was done. Uniting US, China, India on climate Durban resulted in new country groupings with the EU, coalition of small island states and LDC’s on one side and the US, China and India on the other. The European Union was successful in pushing through an outcome about which the United States, China and India were, at best, lukewarm. “The most significant outcome in Durban is that the US, China and India have agreed to be included in a legal framework after 2020. Relationship between the US and China had hampered the progress of global climate talks for several years because neither party had been willing to be the first to move. Now, however, for the first time, they are moving ahead together towards legally-binding reduction targets for all major emitters from 2020. How ambitious those targets will be remains to be seen, but the fact that all countries have agreed to this process is a major leap forward. No Precedent in International Law The Durban Platform is also pretty thin gruel as a negotiating mandate. In terms of its actual language, it is arguably weaker than the 1990 UN
Climate change activists demonstrate their support for a global climate change treaty in Durban
General Assembly Resolution that initiated the UN climate change negotiations and led to the development of the UN Framework Convention on Climate Change. The 1990 UN General Assembly resolution called clearly for the negotiation of a “convention” (albeit a “framework” agreement) “containing appropriate commitments.” In contrast, the Durban meeting was unable to agree on a mandate to negotiate a legal agreement and contains no language about commitments. The Durban platform could be satisfied by an “outcome with legal force” — a formulation that as far as I am aware does not have any precedent in international law. Arguably, “legal force” means the same thing as “legally-binding,” and the addition of “with legal force” to “agreed outcome” (the Bali Action Plan language) means that the outcome is something more than what Bali contemplated (which included COP decisions). But the inability to reach agreement on “legally-binding” suggests that at least some parties thought “legal force” might mean something less.Moreover, the Durban Platform does not specify anything about the content of the new “protocol, another legal instrument or legal outcome with legal force.” The assumption is that it will set forth emissions limitation commitments, but the Durban decision does not say so explicitly. So, in theory, the Durban Platform negotiations could be satisfied by another framework-style agreement. In Durban, the issue was often framed as whether the BASIC countries would agree to negotiate a legally-binding agreement for the post-2020 pe-
riod. But, of course, the BASIC countries are already parties to two climate change agreements, the UNFCCC and the Kyoto Protocol, one of which (the UNFCCC) already imposes general mitigation obligations on all parties, including the BASICs. So the issue is not whether China, India and the other BASIC countries are willing to become party to a legally-binding agreement, even one that imposes mitigation commitments on them. Rather, the question is whether the BASIC countries are willing to accept specific obligations to limit their emissions. The Outcome Overall, it is understood that in Durban the multilateral process was strengthened and more clarity on the legal form of the future agreement exists. However, despite the positive outcomes of the Durban conference, there are still concerns from developing countries that too much burden has been shifted onto their shoulders. Furthermore, the last-minute compromise on legal form was a missed opportunity to clearly establish equity as a basis for the coming negotiations, and the principle of common but differentiated responsibilities (CBDR) has been undermined to some degree, rather than strengthened, as asserted by India during the response to EU’s formula on the last day.The agreement reached in Durban though represents a step forward for the multilateral process. However, the agreement will not affect the emissions outlook for 2020 and has postponed decisions on further emission reductions.
THE MOST SIGNIFICANT OUTCOME IN DURBAN IS THAT THE US, CHINA AND INDIA HAVE AGREED TO BE INCLUDED IN A LEGAL FRAMEWORK AFTER 2020. RELATIONSHIP BETWEEN THE US AND CHINA HAD HAMPERED THE PROGRESS OF GLOBAL CLIMATE TALKS FOR SEVERAL YEARS BECAUSE NEITHER PARTY HAD BEEN WILLING TO BE THE FIRST TO MOVE. NOW, HOWEVER, FOR THE FIRST TIME, THEY ARE MOVING AHEAD TOGETHER TOWARDS LEGALLY-BINDING REDUCTION TARGETS FOR ALL MAJOR EMITTERS FROM 2020
April 2012 India-China Chronicle |29|