The United Nations Framework Convention on Climate Change (UNFCCC) negotiations held in Durban last November resulted in a suite of decisions, including an "agreement to agree" to develop a successor agreement to the Kyoto Protocol which legally binds all parties to the UNFCCC. This is a milestone for international climate change negotiations setting the challenge for the international climate change negotiations and mapping out the future of global climate change action, at least as far as 2020.
Qatar will host the next round of UNFCCC climate change negotiations – the 18th Conference of Parties (COP18) to the UNFCCC and the Eighth Conference of Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP8) – from November 26 to December 7, 2012.
So, what was decided at COP17/CMP7 in Durban and what lies ahead for the COP18/CMP8 in Qatar and beyond?
The Durban Outcomes
COP17/CMP7 in Durban resulted in over 36 decisions. The following three key outcomes are significant in maintaining the momentum and continuity of international climate change negotiations:
The Durban Platform
Crucially, there was a unanimous decision to agree to a successor agreement to the Kyoto protocol.
Parties negotiated a day and a half over time to agree to "develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all parties." Partly due to resistance from India and the US, the form and content of this future legally binding agreement was not set; whether it will be another protocol, a treaty or take some other form and whether it will set binding targets or require voluntary pledges is the detail to be explored over the next four years.
In contrast to the Kyoto Protocol, under the successor agreement there will be a common legal framework for developed and developing countries. It is substantially for this reason that the US and China are on board. Canada, Japan and Russia are also committed to the adoption of the successor agreement, despite having withdrawn from the Kyoto Protocol at Durban.
The Ad Hoc Working Group on the Durban Platform for Enhanced Action will commence work in 2012 and complete its work "as soon as possible", but no later than 2015, for the adoption of the successor agreement at COP21 and its commencement in 2020. Planning work will commence in early 2012 to address issues such as mitigation, adaptation, finance, technology development and transfer, transparency of action, and support and capacity-building.
Kyoto Protocol second commitment period
In the meantime, the Kyoto Protocol, due to expire on 31 December 2012, now has life until 31 December 2017 or 2020, depending on the progress of the negotiation of its successor. Critically, its constituent institutions, such as the Clean Development Mechanism, will continue to operate.
Signatories did not commit to further targets under Kyoto, but rather, will make national voluntary pledges during the second commitment period. Annex 1 parties (developed nations) are to submit their emission reduction objectives by May 2012. This means that a new level of ambition in the form of legally binding targets may not eventuate until 2020.
Green Climate Fund (GCF)
The GCF was designated the operating entity of the financial mechanism of the UNFCCC and its design was agreed.
The GCF is a $100bn/year by 2020 fund established to support all developing nations and least developed nations (especially those which are most vulnerable to the adverse effects of climate change) achieve adaptation and mitigation measures, technology development and transfer (including carbon capture storage), capacity building and the preparation of reports. The GCF will work closely with other UNFCCC bodies, such as the Adaptation Committee and the Technology Executive Committee to support enhanced action on these issues.
The GCF will distribute money by loans and grants and they may employ results based financing methods and make incentive payments. One major contention about the GCF is that the source of its funding is unclear. What we do know is that this funding will come from developed nations as well as public, private or alternative sources. A proposal to generate capital from international shipping levies was opposed at Durban. 2012 will see a governing board and home selected for the GCF, as well as decisions regarding sourcing the fund.
Other outcomes included agreement on:
- Improved transparency and better monitoring, reporting and verification of countries' emissions reduction actions;
- Progressing the REDD-plus mechanism (reducing emissions from deforestation and forest degradation in developing countries and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries);
- New market mechanisms to drive opportunities for low cost greenhouse gas abatement;
- An Adaptation Committee to help developing countries adapt to the impacts of climate change; and
- Rules for a new technology mechanism to speed up transfer of low pollution technologies to developing countries.
Future challenges for UNFCCC negotiations
Durban may have set the tone, and a goal, for the future UNFCCC negotiations; however, these will not be without their challenges.
Specifically, the challenges posed by the Durban outcomes include:
- The science: According to current science, voluntary pledges under the Kyoto Protocol's second commitment period are insufficient to stave off predicted dangerous and irreversible levels of global warming. The Intergovernmental Panel on Climate Change says that a temperature increase limited to 1.5 to 2 degrees Celsius with a peak of emissions by 2020 is necessary to keep global warming under control. Under current UNFCCC commitment levels, a change of 4 degrees Celsius is likely. The Durban Platform decision makes express reference to this emissions gap, noting it "with grave concern".
- Commitment hiatus: The delay in the commencement of a successor agreement to the Kyoto Protocol and its second commitment period comprising national voluntary pledges means that it is probable that emission targets will not be set until 2020, if at all. That Canada, Japan and Russia now stand with the US outside the umbrella of the Kyoto Protocol's second commitment period, having withdrawn to avoid penalties for failing to meet their targets to reduce overall emissions, raises further concerns about international commitment levels.
- Legal form: in order for consensus to be reached on the Durban Platform, the description of the successor agreement was crafted in such a way as to be acceptable to all parties, particularly to India, who insisted on the agreed, watered-down terminology. This drafting may compromise the effectiveness of the successor agreement. Given past experience, it is to be expected that considerable energy will be expended in defining the legal form of the agreement before any substantive progress is made on the detail.
- The fine print: It will be a monumental challenge to design an instrument that reflects and supports different kinds of effort and ambition in a common framework. Agreeing on targets will also be difficult and will involve governments factoring in responsibility for historical emissions, current heavy emitters, emission cuts to date, populations, capacity and capabilities (eg. those nations with forests, those hit more heavily by climate change, those with economic or geographic constraints on using more efficient power and those whose priorities lie with eradicating poverty). The EU indicated at Durban that it is ready to raise its level of ambition by 30%, but that it will not do this alone. The level of ambition committed to under the successor agreement and the closure of the emissions gap is critical in reducing the effects of climate change.
- US commitment: That the US agreed to the Durban Platform is significant, especially considering its refusal to sign Kyoto. The US electoral cycle is expected to influence how the negotiations on the Durban Platform pan out, with a Republican government expected to favour voluntary pledges over binding targets.
- Finance: Although the form and design of the GCF is now established, the source of its funding remains unknown.
The next COP18 will be in Doha, Qatar in late 2012. South Korea will host a ministerial meeting to prepare for COP 18/CMP 8 in order to clarify the central issues in the weeks before this conference.
Both Qatar and the Republic of Korea have committed to make joint efforts to globally promote and implement the "green growth agenda" at and in the run-up to COP18. This is a policy focus of environmentally sustainable economic progress to foster low-carbon, socially inclusive development for the Asia and Pacific region.
At COP17 in Durban, Qatar also promoted progressing UN climate change negotiations and supporting the mitigation and ambition efforts of developing nations, in particular small island developing nations.
Qatar, despite its profile as an oil-rich nation and major energy exporter and CO2 emitter, is becoming a focal point for sustainability and innovation within the Gulf Cooperation Council. Qatar hosted the carbon neutral World Petroleum Congress in December 2011 and has made robust investments in green building and solar technology.
This article was first published in the Qatar Business Review, Feb - Mar 2012
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.