Durban Part 3: The outcome3 February 2012
After the conclusion of the Durban climate talks, EU negotiator Connie Hedegaard proclaimed that “the European Union’s strategy worked”. But did it?
Legal form – binding or not?
Let’s look at the text of the agreements from COP17, beginning with the central Durban Platform. After all the haggling described in Part 2, the final wording of paragraph 2 “decides to launch a process to develop a protocol, another legal instrument, or an agreed outcome with legal force under the Convention applicable to all Parties”. This has been widely interpreted as an agreement that all countries must accept legally binding emissions targets.
But what exactly is “an agreed outcome with legal force”? According to an European lawyer on the scene, it means effectively “a legally binding agreement”. But according to another analysis, the third option appears to allow for a UNFCCC agreement that is not one of the Convention’s recognized types of legally binding instruments (protocols, annexes, and amendments). A third analysis points out that the text does not specify the amount of legal force the outcome will have, or whether all countries will be equally bound, or even whether it will include emissions targets. Finally, the Durban Platform is itself non-binding.
Timeline – a decade of delay
What about the timeline for this nebulous future agreement? Paragraphs 3-4 decide negotiations on the Durban Platform will begin “as a matter of urgency in the first half of 2012”, and conclude “as early as possible but no later than 2015”, and that it will “come into effect and be implemented from 2020”.
On the bright side, the EU succeeded in setting a 2015 deadline for agreement with negotiations beginning almost immediately, thwarting the attempts by the US and BASIC to delay even the negotiations until 2015. Yet the US succeeded in delaying legally binding action until 2020, in spite of AOSIS initially refusing to support such a move. Ultimately everyone loses, because humanity cannot afford to wait another decade for serious action. We need rapid emissions cuts starting now, preferably yesterday.
Ambition – aspired to
There is a silver lining on this massive cloud. The preamble to the Durban Platform explicitly acknowledges for the first time – “noting with grave concern” – the “gap” between current pledges and pathways to 1.5-2°C (unfortunately there is still no consideration of a 350 ppm target). At the request of AOSIS and the EU, paragraphs 7-8 decide to launch a “workplan” in 2012 “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”.
Hopefully this will defeat the oft-heard argument that pledges should not be increased until after a scientific review scheduled for 2013-2015. However, the text does not say this workplan must have the outcome of raising ambition to 1.5-2°C; paragraph 6 merely says it “shall be informed by” – not based on – scientific advice. Furthermore, the decision to delay the implementation of a binding agreement to 2020 means any ambition resulting from this process will remain voluntary.
Justice – ignored
Another major victory for the US is despite the protests of developing countries, there is no mention in the Durban Platform of “common but differentiated responsibilities” or historical responsibility. This is a basic UNFCCC principle so presumably it still applies anyway, but it is left to future negotiations to determine how the agreement will apply differently to rich and poor countries.
Kyoto in name only?
If my understanding of the Kyoto-related decision is accurate, the only thing definitely decided is a second commitment period (CP2) will begin in 2013, and even that much is not legal yet. The text only “takes note of” proposed amendments to the Kyoto Protocol which would actually create the CP2, mandate emissions targets, and establish rules. Then it “requests” negotiations “aim to deliver” a result at COP18 (language similar to that which launched CP2 negotiations in 2005). In other words, legally there is still no CP2, just a non-binding agreement to agree on one within 12 months. Several developing countries, particularly the Bolivarian Alliance of the Peoples of Our America (ALBA), attempted to strengthen the weak text, but to no avail.
All other decisions were put off until COP18, even whether this new period will last five or eight years (AOSIS wanted five years to limit institutional inertia, while the EU argued for eight years to fit the 2020 timeframe of its current pledge). The noted amendments merely say Parties must cut emissions by “at least [X] per cent below 1990 levels in the commitment period 2013 to ”. It sounds like the new Kyoto will not set a top-down target and divide it up, as the original Kyoto did, but add up the cuts countries are willing to commit to.
Even if there is an ambitious top-down target, Kyoto will in any case now cover less than 15% of global emissions. The amendments include a table of national emissions targets which is mostly blank, and admits Canada, Japan, and Russia have no intention of being part of the CP2 (and of course the US never ratified the original Kyoto Protocol). Australia and New Zealand will consider entering on condition they get their way on forestry accounting rules. That leaves only the 27 members of the EU, plus 6 closely related to the EU (Croatia, Iceland, Liechtenstein, Monaco, Norway, and Switzerland), and 3 others (Belarus, Kazakhstan, and Ukraine). The targets proposed for these countries are the same as the politics-based pledges made in Copenhagen.
Another proposed amendment appears to mean all developed countries will be allowed to buy offsets through Kyoto’s Clean Development Mechanism (or any other international carbon market), even countries with no targets in the CP2. In other words, the US, Canada, Japan, and Russia (and perhaps Australia and New Zealand) will get the benefits but not the binding commitments. It could have been even worse: New Zealand argued there should be no rules at all for international emissions trading!
It is not even clear that those who remain in Kyoto will be legally bound. The agreement politely “invites Parties […] to submit information on” their pledges by 1 May 2012, which it “requests” negotiators to consider converting to official quantified emission limitation or reduction objectives (QELROs) “with a view” to being adopted at COP18. Notably, these were called “commitments” in the original Kyoto but are now mere “objectives” – suggesting targets in the CP2 could be voluntary!
Even if targets are binding, there remain loopholes large enough to fly aircraft through. There is no agreement on whether to carry over surplus credits from the first commitment period (dubbed “hot air” because they allow gigatonnes of emissions in excess of future caps). Instead the text “requests” negotiations “to assess the implications […] on the scale of emissions reductions to be achieved” and “recommend appropriate actions to be taken to address the implications”. Similarly, it “welcomes” what is apparently a draft decision on land use, land use change, and forestry (LULUCF) to be considered at COP18 following a scientific review of its implications.
Australia’s creative accounting
A brief history lesson on LULUCF rules is pertinent. In 1997, the Australian delegate refused to sign the Kyoto Protocol without the addition of a special provision that would make our target even easier to meet. Article 3.7, dubbed the “Australia clause”, effectively allowed Australia to inflate its 1990 emissions from land clearing and thus set an unrealistically high baseline.
In Durban, Australia has been accused of trying to cheat again, this time by advocating an amendment to Article 3.7 allowing land clearing baselines to be determined from projected, not historical emissions. Australia was supported by New Zealand. The Australian Greens argue the projections for Australia include all possible logging, meaning Australia cannot exceed the baseline so we will be rewarded even if our land clearing emissions increase. When an Australian journalist asked Climate Change Minister Greg Combet for an explanation, he did not satisfactorily answer the question, essentially saying we should just trust the Government to do the right thing. Needless to say, the Australian government does not remotely represent me.
Underwhelming voluntary action
The remaining decisions relate to the voluntary Cancun Agreements (technically called Long-term Cooperative Action (LCA)). The main LCA document takes 55 tedious pages to say relatively little, generally agreeing to continue talking while the world burns. As with the other two decision texts, the elephant in the room is that it contains no additional emissions cuts on top of those pledged in 2009.
Perhaps of greatest import here are the rules on measuring, reporting, and verification. Countries are instructed to submit information on the methodologies for their voluntary pledges (baseline, coverage, offsets, and so on), which should make them easier to compare and add up to calculate their combined effect. Each nation must also make biennial reports on progress toward their targets, which will be internationally reviewed. The reporting procedures seem relatively basic and are invariably described as “guidelines”, not “rules”. But how much does it matter when this is all voluntary anyway? These review processes will result in only recommendations of actions to be taken voluntarily.
The text “defines” a new offset mechanism with rules to be negotiated at COP18; the decision “emphasizes [offsets] must meet standards that deliver real, permanent, additional and verified mitigation outcomes, avoid double counting of effort, and achieve a net decrease and/or avoidance of greenhouse gas emissions”. I am very suspicious of international offsets because they are a breeding ground for the sort of creative accounting that plagues climate policy. There is also a technology transfer agreement, which Nature points out does not address patent restrictions.
The nonexistent climate fund
The most trumpeted LCA agreement from Durban is a related document to set up the Green Climate Fund (GCF) for mitigation and adaptation in poor countries. However, this document turns out to consist primarily of governance arrangements and guiding principles. It contains very little, if any, actual funding and has been described as an “empty shell”. Proposals to tax shipping emissions or financial transactions were rejected.
I have seen suggestions that developed countries don’t have the money for a Green Climate Fund because of the global financial crisis, but by definition rich nations are not short of money. We still have far more wealth than the ones who need this funding. It’s a matter of priorities; governments spend money on all sorts of things that could be better spent on climate change. For example, cutting perverse fossil fuel subsidies would raise hundreds of billions of dollars globally, without increasing spending one cent. We have a moral imperative to compensate the poorest countries for the effects of our pollution. A GCF can also help raise ambition as many developing nations have made pledges conditional on such funding.