Understanding the climate change negotiations

There are two main treaties governing global climate change action, the UN Framework Convention on Climate Change (UNFCCC), which was part of the package of environmental treaties that was adopted in Rio in 1992 and entered into force in 1994, and the Kyoto Protocol (KP), which is linked to the UNFCCC and was adopted in 1997. The KP entered into force in 2005.

An important point about these treaties is that they are multilateral treaties under the UN. Under these two treaties there are two subsidiary bodies: the Subsidiary Body for Implementation (SBI) and the Subsidiary Body for Scientific and Technological Advice (SBSTA). These two bodies support the KP and the UNFCCC.

Furthermore, there is the Conference of the Parties (COP) which is the supreme decision making body of the UNFCCC. The KP also has a supreme governance body known as the CMP (COP serving as the Meeting of the Parties).

The two subsidiary bodies (SBI and SBSTA) deal with implementation matters relating to assessment and review, and provide scientific and technological advice, respectively.

Under the UNFCCC, the main issues dealt with are mitigation – both for developed (Annex 1) countries and developing countries – adaptation, finance and technological transfer.

One of the key principles in the UNFCCC is equity and common but differentiated responsibilities. This is because Annex 1 countries are more responsible than others for climate change and have a greater responsibility to take action. That was the bargain in Rio and is why developed countries are supposed to take the lead when it comes to climate change action.

Another principle is the promotion of sustainable development and the integration of climate action with national sustainable development programmes. The UNFCCC also addresses the issue of the international economic system. This touches on one of the key issues in dealing with climate change: If countries have to start moving towards low or zero or negative carbon economies this may affect their economies and economic development, and a big challenge is around economic competitiveness.

Those countries that take on mitigation commitments have to realign their national legislation and policies to ensure that their emissions come down. These countries may have to put in place new legislation to oblige their industries to produce more environmentally sound goods. This comes at a cost, and it is argued that other countries that do not have such measures have an economic advantage.

Mitigation has two branches: Annex 1 mitigation and non-Annex 1 mitigation. Annex 1 mitigation is dealt with by the KP. The KP requires developed countries to reduce their emissions by X amount, and in the first commitment period from 2008 to 2012 the figure was only 5 per cent for all Annex 1 countries. There are individual commitments by the Annex 1 countries in the European Union (EU), Japan, Russia, and so on, and these vary, but together they aggregate to 5 per cent, based on 1990 emission rates.

Countries are now negotiating the second commitment period, which should start in 2013. The negotiations also involve discussions on the length of the second commitment period and what the overall target figure should be. This has proven, so far, to be very contentious in the negotiations.

There is concern around the gap which will result if Parties do not have anything in place by 2013. If the negotiating parties do not adopt a second commitment period in Durban, South Africa in December 2011, there will most probably be a gap, since, even if a deal is reached in Durban, that would leave only one year for it to enter into force and usually a ratification process takes quite a number of years.

For the second commitment period, there are a number of positions on the table:

- The African group has now called for a 40 per cent reduction by 2017.

- The small island states and LDCs have always consistently said that there should be at least a 45 per cent reduction by 2020.

- Bolivia and others, including Venezuela, Malaysia and Ethiopia, requested 49 per cent (Bolivia later revised this to 50 per cent) and stipulated that this had to be domestic reductions without any offsetting. This was for the commitment period 2013 to 2017.

Developing countries’ positions are based on what is scientifically necessary and on the principle of equity.

Contrasting this with what the developed countries are pledging sets out the global picture even more clearly. A calculation of the total pledges without the US comes to about 17-25 per cent, which is very far from 40-50 per cent.

The Kyoto Protocol also gives parties use of flexible mechanisms or market mechanisms, such as emissions trading and the Clean Development Mechanism, to meet their targets. These allow developed countries to meet their individual targets abroad – they can pay for projects in developing countries and use those credits to meet their targets.

The Kyoto Protocol also has detailed rules on how countries do their reporting and accounting, and their mitigation is subject to review, and compliance measures. These have not been fully implemented because the first commitment period has not yet ended, so it remains to be seen how effective the compliance system really is. At least on paper, it is one of the strongest compliance regimes in an international environmental agreement.

In Bali in 2007, Parties basically agreed that under the Bali roadmap there would be two tracks of negotiations. The first was already taking place under the Ad-Hoc Working Group on the Kyoto Protocol (AWG-KP) and concerned further commitments under the KP for the second commitment period that should start in 2013.

What was new in Bali was the Ad-Hoc Working Group on Long Term Cooperative Action (AWG-LCA), established under the UNFCCC. The AWG-LCA mandate is about enhanced implementation of the climate convention.

The two tracks are supposed to have two separate outcomes – under the AWG-LCA they actually never quite agreed what the outcome would be, so it could mean anything and it has yet to be decided whether it will be articulated through COP decisions, a new protocol, etc. A new protocol would be a new international agreement that is legally binding. A COP decision is not binding in exactly the same way as a treaty is, however, it is implementing legally binding commitments.

There has been widespread misinformation that the Kyoto Protocol is going to expire in 2012. This is deliberate misinformation peddled mainly by the developed countries that do not want the Kyoto Protocol. The term the developed countries were using was 'post-Kyoto', implying that the Kyoto Protocol is going to end and that therefore Parties would need a new treaty to replace it. That is simply not true.

The Kyoto Protocol is not going to end at all – only the first commitment period will end in 2012, everything else stays in place. When the first commitment period ends, countries are legally obliged to undertake further commitments and that is what they have been negotiating since 2005.

Why was this misinformation spread? Because the developed countries do not want the Kyoto Protocol. The idea behind killing the Kyoto Protocol and having one single agreement is basically to bring down the distinction between Annex 1 and non-Annex 1 countries and essentially do away with the principle of common but differentiated responsibilities. Developed countries want non-Annex 1 countries to join them and take on more legally binding targets than those currently required.

The other problem is the US – they refused to join the Kyoto Protocol and walked away from it. The US is the biggest absolute historical emitter and the biggest per capita emitter of greenhouse gasses today. So they are a really big problem and they are not part of the Kyoto Protocol.

But instead of bringing in the US in and up to the standard of the other developed countries, and also bringing in developing countries, the push now is to do away with internationally binding targets and common rules altogether and have a pledge and review system and new market mechanisms. All in all, this would be a really bad deal.

The fundamental problem is that if there is a new treaty agreed, even one that does not purport to replace the Kyoto Protocol, then what is there to stop countries like Canada, Russia and Japan from choosing to have weaker obligations than that of the Kyoto Protocol, especially if the US is part of that new treaty?

Within the Kyoto Protocol, the part that civil society in particular loathes is the market mechanisms. There are many groups that have been campaigning against the Kyoto Protocol for many years because of the market mechanisms. These really need to be rolled back and eliminated. Ultimately, we may need a process within the CMP to review and eliminate the market mechanisms.

There should not be any new market mechanisms, but under the negotiations of the AWG-LCA, Annex 1 countries are already trying to migrate all of the market mechanisms from the Kyoto Protocol into a new treaty and create new market mechanisms. We need to ensure that if we are not going to create a new weaker treaty for all of the developed countries to jump into, then market mechanisms must not be migrated into and created in the other track of negotiations.

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* This special issue is jointly produced by Pambazuka News and African Agenda, a publication of Third World Network-Africa.
* Lim Li Lin is a legal expert with Third World Network (TWN).
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