South Africa: COP 17 and beyond - the climate change challenges posed by the Durban Platform

Key Points:

The Durban Platform has set the challenge for the international community and mapped out the future of global climate change action, at least as far as 2020.

COP17/CMP7 in Durban, the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) and the signatories to the Kyoto Protocol, resulted in over 36 decisions, including the key outcome, the Durban Platform.

That the US, China, India and Brazil, the world's largest emitters, agreed to the Durban Platform, which sets a roadmap for the negotiation, agreement and commencement of the successor to the Kyoto Protocol, is labelled a "significant" or "landmark decision" by some and "a face-saver" and "major disappointment" by others.

It's significant because there is now a foundation for negotiating a legally binding instrument by 2020 to tackle climate change that binds both developed and developing countries, disappointing because according to scientific evidence it may not be enough to avert dangerous and irreversible levels of global warming.

International climate negotiations are tense and the issues complex – the disparity between developed and developing nations in terms of capacity, capability and consequently levels of ambition, the responsibilities of large historical emitters versus current large emitters as well as the reality of the scientific evidence are just a few of the issues with which the UNFCCC attempts to grapple.

Effective global action requires consensus decisions that are widely supported by all stakeholders, with mitigation and adaptation commitments that are evidence based. That parties to the UNFCCC made an agreement to agree to a successor to the Kyoto Protocol is a milestone for UNFCCC negotiations, and one that sets a roadmap for the negotiations, and challenges, ahead.

The Durban Platform

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 have not been set; whether it will be another protocol, a treaty or take some other form, whether it will sets binding targets or requires voluntary pledges are the details to be explored over the next four years.

The roadmap outlined by the Durban Platform includes:

Ad Hoc Working Group on the Durban Platform for Enhanced Action – this working group will commence work in 2012 and complete its work "as soon as possible", but no later than 2015 for its adoption at COP21 and to come into effect in 2020.

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. Signatories did not commit to further targets under Kyoto, but rather, parties will make national voluntary pledges during the second commitment period. Annex 1 parties (developed nations) are to submit their quantified emission limitation reduction objectives (QELROs) 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

An agreement was reached as to the design of the GCF, which was designated the operating entity of the financial mechanism of the Convention. It is a $100bn/year by 2020 to fund to support the developing nations and the least developed nations achieve adaptation and mitigation measures. The major contention is that the source of the funding for the GCF is unclear. A proposal to generate capital from international shipping levies was opposed and the fund will instead distribute money by loans and grants.

Future challenges for UNFCCC negotiations

Durban sets the tone, and a goal, for the future UNFCCC negotiations. But these will not be without their challenges.

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.

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 we will not see emission targets 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 new UNFCCC instrument 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.

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.

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 Durban has established a new GCF, the source of this finance is unknown.

Effect on carbon markets and Australian climate change policy

Since agreement was reached on the Durban Platform, carbon prices have been slowly climbing from a record low. While the Durban Platform failed to deliver certainty on targets, it has demonstrated to the market that the global community is committed to reducing the amount of carbon in the global economy. It really is a question of the global community's resolve in delivering those reductions, and the time in which this is to occur.

Carbon markets have received a further boost from the announcement of China's five year plan – which sets China's first carbon intensity goal, aiming to bring emissions down by 17% as part of its overall pledge to cut emissions intensity by 40-45% by 2020 – and its intention to have an emissions trading scheme by 2015. California's emissions trading scheme will also commence shortly.

The boost to the international carbon market should support Australia's Clean Energy Future Legislative Package. China's five and 15 year plans, the targets proposed by the EU, plus the global agreement to reach a legally binding commitment to implement the objectives of the UNFCCC, indicate that Australia is participating in an international transition to renewable energy sources and participation in carbon markets.

You might also be interested in ...

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions