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National Affairs

What Durban revealed about climate’s shifting allegiances

14 December 2011

Canada’s reversal on Kyoto won’t undermine the sense that the Durban climate conference achieved more than many expected, writes Michael Jacobs

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Above: European Union environment commissioner Connie Hedegaard talks to journalists in Durban.
Photo: Adopt A Negotiator/ Flickr

Above: European Union environment commissioner Connie Hedegaard talks to journalists in Durban.
Photo: Adopt A Negotiator/ Flickr



CANADA’s announcement this week that it will formally withdraw from the Kyoto Protocol could not have been better timed to puncture the sense of progress generated by the UN climate change conference in Durban just two days earlier. There, delegates had celebrated a dramatic and unexpected conclusion that saw all 194 countries (including Canada) agree to work towards a new legal regime to succeed Kyoto; they will now be feeling that a bucket of cold water has been tipped over their heads.

In truth, the Canadian decision is no surprise, and it does not affect – much – what was achieved in Durban. Since signing up to Kyoto in 1997 Canada has made almost no effort to meet its modest emissions reduction targets (6 per cent on 1990 levels by 2012), and is now headed for an increase of around 30 per cent. Withdrawal from Kyoto now, a year before its target has to be met, will allow Canada to avoid the sanctions the Protocol imposes on countries that fail to meet their commitments – though since these principally lie in being forced to accept a stronger target next time, they were unlikely to have much impact on a country that had already said it would not be joining another commitment round.

The decision is therefore principally significant for the demonstration it provides of the limitations of international law: whatever “compliance” mechanisms are formally designed, it is very difficult to apply them if a country simply withdraws from the regime altogether. This looks like a sobering reality check for those who have hailed the Durban outcome as a major step forward – if the force of law means so little, should so much be invested in negotiations towards a new protocol?

But this misses the point about what happened in South Africa. Compliance mechanisms have always been the weak link in international treaties, and few people believe that the United States, China or India will sign up to anything that threatens them with serious sanctions. The significance of the Durban deal is more fundamental: these countries have finally accepted the principle of a collective, rules-based legal system for dealing with climate change – to which they too should be subject.

This, after all, was what was lost in Copenhagen two years ago. At that conference, the United States and the four largest emerging economies (China, India, Brazil and South Africa) combined to delete the objective of a new treaty under international law. The system created by Copenhagen, consolidated last year in Cancun, was that of “pledge and review,” under which countries adopt voluntary national commitments using their own carbon accounting rules, with only the lightest monitoring at international level. Such a system looked as if it suited the largest emitters very well, and in the emerging world order was unlikely to be changed any time soon.

Yet here we are now with all these five countries – and Canada, Russia and Saudi Arabia to boot – joining the other 186 nations of the world in agreeing to negotiate “a protocol, another legal instrument or an agreed outcome with legal force... applicable to all.” How did that happen?

The answer lies precisely in those numbers – and in a remarkable change in geopolitical alliances among them during climate change negotiations over the last two years.

Almost uniquely among international decision-making bodies, UN climate change conferences operate by consensus among all participating nations. When coupled with the inescapable moral basis of climate negotiations – the recognition that this is a problem caused by the richest countries whose greatest costs are occurring in the poorest – this gives unprecedented influence to the poor but numerous developing countries, which can accurately portray themselves as the “victims” of the issue. In no other global decision-making forum do Gambia (population 1.7 million, chair of the Least Developed Countries) and Grenada (population 108,000; chair of the Association of Small Island States) sit at the negotiating table as equals with the United States, the European Union and China.

In the past, this hasn’t in practice counted for much, because all the developing countries negotiated together in a single bloc, the “G77 and China,” which was inevitably dominated by the biggest among them. But in Copenhagen the four largest developing countries effectively split off from the rest, and since then the tectonic plates underpinning the negotiating continents have undergone a dramatic shift. On the one hand Brazil, South Africa, India and China (the BASIC group) have forged a strong collective identity as the emerging economic and political powers, capable of acting as a counterweight to both the United States and Europe. On the other, an entirely new grouping of countries with progressive ambition on climate change has emerged, the so-called Cartagena Dialogue, with membership drawn from both developed and developing countries.

In Durban, for the first time, this alliance called the shots. In a brilliantly executed strategy, the European Union, the small islands and the least developed countries, supported by progressive allies such as Colombia and Costa Rica, forged a set of common positions in pursuit of the legal outcome they all wanted – the continuation of Kyoto on one hand, and negotiations towards a legally binding treaty on the other. As the talks reached their climax, 120 countries issued a joint statement in support of such a deal, an unprecedented act. In doing so they effectively identified the “opposition” – those who did not want a legally binding outcome – as the United States and BASIC. On both sides of the argument the traditional negotiating division between developed and developing countries was shattered.

For BASIC this was deeply uncomfortable. At once it exposed the tensions within the bloc – South Africa and Brazil were prepared to sign up to legal commitments after 2020, but China was reluctant and India deeply opposed – and put them embarrassingly on the same side as the United States, their traditional negotiating opponents and bête noire of all climate talks.

In the final showdown the pressure got too much. China and India inserted into the key text a weak wording allowing the goal of negotiations to be a “legal outcome” as well as a protocol or legal instrument; the European Union, the island states and the least developed countries were adamant that they could not accept this, and would walk away from a deal if it remained. India’s environment minister, Jayanthi Natarajan, made an impassioned speech denouncing the claim that hers was the country standing in the way of a deal, deploring the lack of reference in the text to the need for equity or the different responsibilities of rich and poor countries, and saying she would not be intimidated into making a harder legal commitment. The South African chair asked the European Union and India to discuss whether a compromise was possible. And then, in an extraordinary scene, a direct negotiation began in the plenary hall between the Indian minister and the European Union’s commissioner, Connie Hedegaard, rapidly flanked by the United States, China, Brazil, Gambia and others, all surrounded by delegates and press taking photographs and trying to catch what was being said. Half an hour later a handshake and a cheer signalled that agreement had been reached.

But it was not a compromise at all. Natarajan had simply caved in, accepting a much stronger form of words – “an agreed outcome with legal force” – and failing to win any new references to equity or the different responsibilities of developed and developing countries. These would have been acceptable to the European Union (they had indeed already been offered); but the United Sates said no, and China and Brazil notably did not come to the Indians’ aid.


And so what had seemed highly improbable at the start of the talks had been achieved. Durban re-establishes the principle that tackling climate change should be governed by international law, and preserves that principle’s only existing manifestation, the Kyoto Protocol. The new regime is to be negotiated by 2015, and to come into force from 2020. Kyoto will survive until then, albeit with limited participation, with “pledge and review” for everyone else; but at the end of the decade, if all goes as now planned, a new legal regime covering all countries will commence. It is in effect the result everyone wanted in Copenhagen, but now timed for eight years later – after 2020, not 2012.

And that’s the key. What has happened since Copenhagen is a gradual realisation among the emerging economies – other than India – that the rigid distinction between the responsibilities of developed and developing countries in terms of legal commitments was becoming less and less tenable as their economies and geopolitical power grew. They are not prepared to abandon it just yet; but from 2020 they could see it would have to go.

China was the swing voter. One of the most striking aspects of the Durban talks was how forward-looking the Chinese were – parading their ambitious domestic climate policies in a series of side meetings, suggesting in an early press conference that they might be prepared to take on legally binding commitments, and generally doing everything to ensure that if Durban failed it would not be seen as their fault. They would not, in other words, allow another Copenhagen. Almost certainly they would have preferred an outcome that fell short of a clear commitment to a legally binding regime (and they may still try to claim that the agreed wording does not require that) but in the end they were not prepared to bring the talks down for it. Acceptance of international legal constraints on its emissions pathway is a remarkable shift in China’s stance, not just on climate change talks but on international governance more generally.

And for all the resistance it put up through the talks, it is notable that the United States too has conceded the principle of an international legal instrument. But as ratification of that by the US Senate will not have to take place until after 2016, they have artfully ensured that this will be some other president’s problem.

As for Australia, a mixed report card. As a member of the Cartagena Dialogue it has helped forge the new progressive alliance of developed and developing countries. But in Durban it negotiated as usual on the side of the United States, weakening the agreement in a variety of areas. The government now faces a single crucial test of where it stands: does it commit alongside Europe to a second commitment period of Kyoto from 2013 to 2020, or does it take the likely Russian and Japanese route of remaining within the Protocol but without a new target? Only the former will maintain its progressive credentials in the eyes of the world.

None of this, of course, is to overestimate what Durban achieved. As the green NGOs have rightly pointed out, the talks did nothing to raise the targets that countries have set themselves – and therefore nothing to change the course of emissions which on current trends look likely to take the world towards around four degrees of warming by the end of the century.

Yet even here there was some progress. Again as a result of the pressure applied by the developing countries and the European Union, countries have been forced to admit that their current commitments are not sufficient to achieve the two degrees warming goal they have all signed up to, and therefore will have to be strengthened – not just after 2020 but (if the science is to be followed) before. This will be hard. In the current economic climate few countries want to revisit their current targets, Australia least among them. But for campaigners that bit of the agreement provides a vital hook. As the crucial negotiating date of 2015 looms, new battles are already being prepared. •

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Photo: Andrew Jeffrey

Photo: Andrew Jeffrey