Climate law followers will know by now that in the early hours of Sunday morning a deal was thrashed out by the 194 members of the United Nations Framework Convention on Climate Change likely to guide the course of international climate law for the next decade.
The key components of the “Durban Outcome” include agreement in principle by a select group of countries led by the European Union to sign up for a second commitment period under the Kyoto Protocol, establishment of a $100 billion “Green Climate Fund” and high-level commitments to work towards a comprehensive climate agreement that will eventually coordinate and regulate emissions reductions commitments by all countries, including (critically) developing as well as developed countries.
The new proposal will draw in climate-pariah states such as the US as well as China and India, none of whom are presently covered by any legally binding requirements to reduce emissions under international law.
International climate negotiations such as those which recently took place in Durban tend to go down to the wire. Parties hold back their ultimate bottom lines until the last minute.
These negotiations took that approach to the extreme. Some key documents containing the proposed final text of the decisions were not circulated parties until the last scheduled day of the conference. Marathon sessions from Friday evening bled into the early hours of Saturday morning, and then virtually through the night without succeeding in breaking deadlocks on critical issues.
A last-minute proposal by South African conference President Maite Nkoana-Mashabone for a in-session “huddle” involving a number of the core parties proved to be the key to unlock a somewhat uneasy compromise, but one which every country was willing to live with. How much of the final outcome was driven by sheer exhaustion is a fair question; video footage of the last couple of hours of the session shows many of the negotiators struggling to keep their eyes open.
The complete set of decisions adopted by the parties to the framework convention and Kyoto Protocol include technical arrangements or ‘modalities’ on various aspects of the international climate law regime, addressing matters as such the operational arrangements for an international fund intended to provide financing for developing countries for climate mitigation and adaptation projects, and the establishment of an ‘Adaptation Committee’ (a UN body to coordinate activities, largely in poorer countries, to prepare for the escalating impacts of climate change).
The central and most controversial area of discussion concerned the future of the global climate mitigation regime.
One issue was whether the 1997 Kyoto Protocol should be retained for a second round. The protocol’s first commitment period expires on December 31. A pressing issue was whether those developed countries who have signed up to the Protocol already (including the EU, Australia and New Zealand) would be willing to accept a second commitment period.
The EU had said that it would be willing to accept a second commitment period with obligations which, on their face, imposed tougher requirements to reduce emissions than in CMP1. But it was only prepared to do so if it could be satisfied that the rest of the world (including the US, China and India) was willing to bring itself under some sort of legally binding regime of emissions reductions commitments. This was at the heart of the matter being debated in the early Sunday morning huddle.
What broke the deadlock (with words put up by the Brazilian delegation) was the following text:
[The parties also decide] 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.
Mark Lynas, climate change adviser to the President of the Maldives and Visiting Research Associate at Oxford University’s School of Geography and the Environment has this to say about the phrase: "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”.
With that commitment in hand, the EU was willing to press ahead with a second commitment period to the Kyoto Protocol, as well as agreed to various other institutional and operational measures designed at strengthening and advancing the UN regime for climate change mitigation and adaptation.
So where does New Zealand sit in all of this?
The COP decision recording agreed outcomes concerning the Kyoto Protocol includes a table which collects together Kyoto countries’ commitments (in UNFCCC jargon, Quantified Emission Limitation or Reduction Obligations or QELROs) in a second round. The line relating to New Zealand is blank, with a footnote as follows:
New Zealand is prepared to consider submitting information on its QELRO… following the necessary domestic processes and taking into account decision 1/CP.17 and decisions on mitigation…of the Conference of the Parties.
New Zealand has agreed to consider submitting figures, after more analysis, perhaps some consultation, and a hard think about how the entire package looks in the cold light of day.
On the matter of the Protocol, Ministers Groser and Smith commented on the Durban results this week using very guarded language:
We, and no doubt Australia, will each need to make a decision in coming months whether to join Europe in inscribing our next set of international commitments within the framework of the Kyoto Protocol or to join all the developing countries, the United States, Canada, Japan, Russia and others, in making those commitments under the alternative transitional arrangements described in different texts.
Like all countries, we will need to take account of our national circumstances and compare our efforts to the efforts of others. We want to do our fair share, but it will not be clear for some time what exactly others will be committing to.
One reason in favour of New Zealand signing up to a second commitment period under Kyoto is because it is one of the few countries with an established emissions trading scheme which has linkages to the present Kyoto architecture. But Groser and Smith’s statement raises the distinct possibility of New Zealand moving away from its previous positioning alongside the EU, towards that of the US and Canada (which not unexpectedly, but still controversially, announced this week that it intends to withdraw from, Kyoto completely).
Groser made it clear before the results of Durban was known that irrespective of the outcome, New Zealand would be pressing ahead with its ETS and other mitigation measures. In that sense, emergence of the Durban Outcome and Framework will have no immediate radical impact on New Zealand domestic climate change policy.
What Durban has produced however, is international consensus for not only the continuation of the Kyoto initiative in some form but as Lynas notes, more significantly for the medium and long-term, an historic step towards the dismantling of the categorisation of countries into “developed” and “developing” with the former being the only parties with binding emissions reductions obligations. That distinction has been at the heart of refusal on the part of the US to agree to binding commitments, which in turn has been a major contributor towards other major emitters such as China and India being unwilling to accept binding commitments.
With the Durban Framework, the global community is on track to develop a comprehensive regime which covers all countries. It is an outcome which validates New Zealand’s early mover stance on establishing a domestic regime for setting a price on carbon. Observers will be watching with interest the government’s next steps.