Posted on December 20, 2011 by Jonathan Z. Cannon
The 17th Conference of the Parties (COP 17) under the United Nations Framework Convention on Climate Change (UNFCC) ended last Sunday, December, 11, 2011, in Durban, S.A. Some commentators have condemned the outcome as a sham that allows nations to continue emitting greenhouse gases (ghgs) at will for the indefinite future; others have celebrated it as a major step toward binding emissions limits for both developed and developing nations. Only time will prove which view is correct.
In force since 1994, with over 190 parties, the UNFCC established the objective of stabilizing concentrations of ghgs in the atmosphere “at a level that would prevent dangerous anthropogenic interference with the climate system,” which the current consensus translates as an increase of no more than a 2 degrees Celsius (2C) above pre-industrial levels. The UNFCC made a sharp distinction between the commitments of developed countries (listed in Annex 1 of the agreement and often referred to as “Annex 1 countries”) and those of developing countries, including major greenhouse gas emitters such as China and India. The UNFCC obligated only developed countries to take steps to limit their greenhouse gas emissions, and that obligation was unquantified and unenforceable.
The 1997 Kyoto Protocol quantified emission reduction targets for Annex 1 countries and included a provision for holding Annex 1 parties accountable for missing their targets. Nevertheless, the Protocol addresses less than one-third of global ghges. Those outside its jurisdiction include not only the United States, the world’s second largest ghg emitter, but also China and India, now the world’s first and third largest ghg emitters respectively.
Developing countries’ resistance to binding limitations has been formidable, based on their claim to economic development comparable to that already enjoyed by Annex 1 countries and on their smaller historic contribution to increased ghg concentrations. But at Durban, that resistance cracked, with help from a bit of lawyerly wordsmithing. An early draft of the decision document outlining a “platform for enhanced action” called for negotiation of an agreement to reduce ghg emissions in the form of “a protocol, another legal instrument or a legal outcome under the [UNFCC] applicable to all Parties.” Reportedly India had insisted on including “legal outcome” in this wording in order to make room for voluntary commitments. That brought objections from others insisting on binding commitments from all parties. In the negotiating huddle, someone suggested “outcome with legal force” as an alternative, and the parties bought it. The Washington Post identifies the source of the key compromise language as State Department lawyer Susan Biniaz. With that inspired piece of lawyering, she opened the door to the next phase of global climate change negotiations.
There is still much uncertainty going forward. The agreement reached at Durbin is only an agreement to negotiate and is itself non-binding, as economist Robert Stavins has pointed out. The targets remain to be negotiated. Non-binding “pledges” of reductions through 2020 previously submitted by the parties would affect future emissions only modestly. The United Nations Environmental Programme estimates that, even if carried out, these pledges would fall well short of reductions consistent with limiting global warming to 2C. And finally, there is the uncertainty about the key phrase – “outcome with legal force.” Does it resolve differences, pointing the way toward binding commitments while giving developing nations some cover, or does it merely paper over disagreements about the nature of the undertakings expected of the parties that will emerge again in force when the negotiations get serious? Time will tell, but at least the lawyer’s work has given us room to hope.