On 11 December 2011 in Durban the first global agreement in principle to climate change emissions reductions by 194 countries was announced. Whilst this agreement is, a stepping stone (it is an agreement to subsequently agree "a legally binding" agreement), there should be no mistaking a simple but powerful fact; all countries, developed and developing alike, have agreed a road map to a binding agreement on how to tackle the emission of greenhouse gases ("GHGs"). The key aspects and the implications are set out below.
The foundations of the talks
In 1992 the United Nations Framework Convention on Climate Change (UNFCC) was established to cooperatively consider measures to limit average global temperature increases and resulting climate change. This was followed by the Kyoto Protocol (in force on 16 February 2005), which set binding GHG emissions targets for 38 developed nations (amounting to an average of a five per cent reduction against 1990 levels over the five-year period 2008-2012). While the UNFCC encouraged developed countries to stabilise GHG emissions, the Kyoto Protocol committed 38 of them to do so. However, reductions targets for developing countries under the Kyoto Protocol are voluntary. This created a central controversy with very significant developed countries refusing to sign up to binding reduction levels.
The Kyoto Protocol is due to expire next year. Given the major changes required to achieve limits on global temperature increase, the Durban conference was seen as a crucial step in engaging Governments to arrive at a legal mechanism to avoid dangerous climate change.
There were 3 major developments arising from the talks.
- Global agreement on a roadmap to achieve a legally binding deal on GHG reductions.
A global process has been agreed to develop "a protocol, another legal instrument or an agreed outcome with legal force" under the UNFCC applicable to all parties, through a body known as the "Ad Hoc Working Group on the Durban Platform for Enhanced Action". Work is to start as a matter of urgency in the first half of 2012. It is envisaged that the work shall be completed by no later than 2015 in order for the protocol, legal instrument or legal outcome to come into legal effect and be implemented from 2020.
In the meantime the Ad Hoc Working Group shall also work on climate change related mitigation, adaptation, finance, technology (development and transfer), transparency of action, and support and capacity-building. The idea is for the process to raise the level of (well informed) ambition, by the next report by the Intergovernmental Panel on Climate Change and other reviews. A work plan has been launched to identify and to explore options for actions to ensure the highest possible mitigation efforts. Parties and observer organisations are requested to submit by 28 February 2012 their views on options and ways for further increasing the level of ambition.
- The extended duration of the Kyoto Protocol: the length to be agreed next year
There shall be an extension of the Kyoto Protocol until at least the end of 2017 and perhaps as far as 2020 (when the global agreement proposed above is due to enter force) but the precise period shall be agreed next year. For the time being Kyoto Protocol participants must submit quantified emission limitation or reduction objectives for review by May 2012.
- The Green Climate Fund
A global fund is to be established to provide finance to developing countries for reduction and adaptation purposes. It is intended that the fund will be guided by the principles of the UNFCC and promote the shift towards low-emission and climate-resilient development, by providing support to developing countries to limit or reduce their GHG emissions and to adapt to the impacts of climate change. The aim is for the fund to catalyse climate finance, both public and private, at international and national levels, pursuing a country-driven approach. It is intended to promote and strengthen engagement through the effective involvement of relevant institutions and stakeholders. The fund is to receive financial inputs from developed countries but may also receive financial inputs from a variety of other sources, public and private.
The conference result has been both lauded as the first truly global agreement and criticised for its limitations. The lack of very hard or specific particulars of what is to be agreed by 2015 introduces considerable uncertainty. Nevertheless and importantly, for the first time a number of nations which contribute significantly to global GHG emissions have agreed to accept legally binding targets on GHG from 2020. These include the likes of Brazil, China, India and the US. Commitment to the setting up of the Green Climate Fund is a very significant step.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
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The original publication date for this article was 12/12/2011.