The United Nations talks on climate change resumed in Durban this week. The end of the Kyoto Protocol’s first commitment period is rapidly approaching and so the unresolved question of the legal nature of the post-2012 climate regime is at the top of the agenda in South Africa.
The slow progress in the international talks can essentially be traced back to this ongoing agenda fight: what exactly are we negotiating? Who should it bind, and to what kind of obligations? In calling for an unspecified “outcome” by the 2009 Copenhagen conference, the roadmap agreed in Bali in 2007 concealed this disagreement.
Initially, the uncertainty surrounding the legal nature of the final outcome facilitated progress on substance, specifically in negotiations on new climate-change mitigation commitments in Copenhagen. This is no longer the case. Countries are reluctant to take further steps on actions to reduce carbon emissions internationally, or on implementation domestically, unless the legal form is clarified.
Durban therefore needs to tackle this issue head on. This is not an easy task, given the wide range of country positions, and the extremely thin overlap between them.
Parties to the Kyoto Protocol oppose the continuation of a two-track negotiating process. Some of them – Canada, Russia, Japan – simply and firmly reject a second commitment period of the 1997 deal to restrict the emissions of industrialised nations. Others – Europe, Norway, Australia – are more open, and could accept a second phase, provided certain conditions are met.
The United States, meanwhile, is reluctant to enter into negotiations on a legally binding agreement without domestic legislation in place first. It could envisage such an agreement only if major developing countries are also bound by legal obligations. But the major developing countries are very reluctant to undertake international obligations that could constrain their domestic political priorities. Some – Mexico, South Korea, even China – could consider such commitments, but not immediately, and only if they were different from those of developed nations.
And so the talks have entered into a three-sided stalemate. It is clear that a step-by-step approach is necessary to begin to unpick this Gordian knot, rather than an attempt to slice through it. A high level consensus on the legally binding nature of the outcome would allow negotiations to proceed on a more productive basis.
Within this big picture, a decision must also urgently be made on the Kyoto Protocol that helps work towards the ultimate aim of this global legally binding agreement. In Durban, negotiators should strive for a solution that gives enough space to allow the gradual development of the climate regime over time. This roadmap could consist of a transitional commitment period of the Kyoto Protocol, and eventually a precise negotiating mandate towards a new legally binding agreement.
Continuing the Kyoto Protocol needs to be part of a reciprocal, step-by-step process. If countries are unable to negotiate a legally binding second commitment period up front, several transitional approaches could be explored. But outright rejection of a legal second commitment period would send the wrong signal, and prevent the world from reaching a new legally binding agreement further down the line. Therefore, a legal second commitment period could be negotiated and eventually applied provisionally. Its ratification could be linked to the adoption of a new global legally binding agreement.
It is clear that the legal nature of the second commitment period will be linked to the ambition and precision of a negotiating mandate towards this new agreement. Kyoto Protocol parties should therefore be prepared to commit eventually to a legal commitment period in return for a precise mandate to negotiate an eventual replacement agreement.
China, together with some other major developing countries, has indicated it would be prepared to start negotiating a legally binding agreement after developed countries have committed to a second commitment period of the Kyoto Protocol. This global agreement could eventually enter into force after the second phase of Kyoto. But it takes time to negotiate – and bring into force – a legally binding agreement. Altogether, Kyoto took eight years. A mandate towards a new legally binding agreement therefore needs to be adopted as soon as possible. If it proves impossible in Durban, it must be adopted in 2012.
Such an agreement should respect the principle of common but differentiated responsibilities, the idea that rich nations should bear a greater burden than poor nations in the fight against climate change. It should allow achievable yet transparent obligations to be adopted by developing countries as interim steps towards the eventual adoption of binding caps. These could be binding packages of nationally appropriate policies, directed towards an identified, non-binding emissions objective. Chinese officials have indicated that China may be open to such an approach, although the crucial question of the precise legal nature of such policy packages remains open.
A positive outcome in Durban both on the Kyoto Protocol and on the legal nature of the final outcome, though difficult to achieve, is not out of reach. But it will require negotiating skills, and above all, a shared sense of responsibility. All countries will have to depart from their existing negotiating positions. This does not mean that countries will have to compromise on their national interests, quite the contrary: it will enable us all to better protect our collective and national interests. But moving from a low to a higher equilibrium will also require political will and leadership.
In the past, Europe took the lead in international climate negotiations. It will continue to do so, but its ability to maintain that leadership is hampered by a very serious public debt– and now political – crisis. And besides, as Copenhagen showed, it can no longer do it alone. The United States is unable, and perhaps unwilling, to take leadership. But China’s position in the negotiations has recently evolved in a very positive direction. And even more importantly, China has strengthened its domestic actions dramatically.
Over the past half decade, China’s 11th Five-Year Plan already achieved significant results in energy saving and carbon-intensity reduction, through programmes to close small coal-fired power plants, cut the energy use of China’s 1,000 largest businesses and promote renewable energy in particular. The 12th Five-Year Plan, which began this year and ends in 2015, reinforces these policies and adds new ones, in particular the possibility of introducing carbon markets. These climate policies are beneficial to China, not only because they tackle climate change but also because they reduce local pollution, improve energy security and facilitate the macro-economic rebalancing of the economy.
China will not become the new leader of international climate negotiations in Durban, and this is only fair. The domestic agenda, in particular market reforms to maintain high growth and welfare policies to reduce poverty, rightly remain the absolute priority. But, to pursue these goals at home, Beijing now has a big stake in maintaining a robust climate regime. International climate cooperation will facilitate Chinese domestic reforms, and it will also allow China to sell even more of the low carbon technologies it already exports, such as solar photovoltaic panels.
It is therefore highly likely that China will play a constructive role in Durban. This is good news, both for China and the planet.
Thomas Spencer is research fellow in climate and energy economics and Emmanuel Guérin director of the climate programme at the Institute for Sustainable Development and International Relations (IDDRI).
For further information see Thomas Spencer’s paper “A legal Form Proposal for Durban and Beyond”. Information on IDDRI’s activities in partnership with Chinese research centres and policymakers is available here.
Homepage image by Polska Zielona Sieć
