[actually quite a lot]

by Trudi Zundel

The first commitment period of the Kyoto Protocol will end in 2012. In anticipation of that ending, Parties have been discussing what form the new UNFCCC commitments will take. The first item on the table: will there be a second commitment of the Kyoto Protocol?

Developed and developing countries have fundamentally different hopes for a Durban outcome. Developed countries are using this as an opportunity to drop out of a legally-binding protocol that they don’t support. In their opinion the KP is outdated, based on 1990 measures of “developed” and “developing” countries. China, Brazil, and India are considered developing countries under the UNFCCC, which means that their emissions are not legally restricted. Developed countries are saying that, based on total amounts emitted, these three countries are among the world’s highest emitters, and any protocol that doesn’t restrict them is useless. According to the USA, this is the reason that they refuse to sign onto the KP; really, though, for most developed countries, they don’t want to restrict their economy if their major economic competitors don’t have to.

The media has only been reporting that countries are working towards a treaty to replace the Kyoto Protocol, and ignoring the developing country goal of continuing commitments under the Kyoto Protocol with a complementary treaty alongside. This lack of coverage is a problem because it lowers public expectations about a second commitment period.

At COP13 in Bali, Parties agreed on the Bali Roadmap, which established a two-track system: one was a working group on the Kyoto Protocol, whose job was to improve and update the Protocol. The second was a working group on Long-Term Cooperative Action (LCA), spearheaded by the USA, whose task was to create an alternate mechanism to the Kyoto Protocol based on a shared vision among all UNFCCC parties. Now that the first commitment period of the Protocol is coming to an end, the future of these two tracks is uncertain: some of the most important negotiations here in Durban will be about the legal form of the LCA.

The legal form is very important. A new, legally-binding treaty that would replace the Kyoto Protocol would take a long time to develop and implement—during the lag-time, if the Kyoto Protocol did not continue, there would be no legal restrictions on emissions. A legally-binding treaty that would only complement the Kyoto Protocol, which is what some developing countries want, is also dangerous—legally, the most recent treaty takes precedence over earlier ones. If the new treaty is not as effective as Kyoto, it will still take legal precedence.

A new, non-legally binding treaty to replace Kyoto, which is what the US wants, would be based on a pledge-and-review system. This means that countries would commit to reduce however much they feel they can, and would not have a legal mechanism to make sure that they do even that.

The choice between a new treaty to replace Kyoto and one to complement it is a false dichotomy. Negotiators seem to be forgetting that any COP decision, like the one that came out of Cancun, is in fact legally-binding because countries are party to the UNFCCC, which is a legally-binding convention.  COP decisions do not need as much time to implement, because domestic governments do not need to ratify it. A COP decision to complement the Kyoto Protocol might be the best option for developing countries, especially given the urgency of climate change.

Politics of the New Treaty: What’s Likely to Happen?

On this issue, opinions can be reduced to a few main camps. Developed countries like Canada, Japan and Russia, spearheaded by the USA, want a non-legally binding mechanism that would replace the Kyoto Protocol. They would prefer a “pledge and review” system, in which countries determine for themselves how much they are able to reduce emissions.

The US has rigid demands for the LCA, and will not negotiate its stance under any circumstances. It wants a non-punitive pledge and review system; “symmetrical” legal obligations for developed and developing countries; and developing country pledges that are not conditional on finance.  This outcome would be disastrous for the climate—current pledges from countries under the KP would result in a global temperature rise of 5°C; without legal obligations they might fall further.

Canada has just formally announced at the COP that it is pulling out of the KP, although it has been saying this all year; Japan and Russia, too, will most likely not sign on.

The EU, who champions the “ethical developed country” cause, has said that it is open to a second commitment period, but only if other major economies (like the US, Canada, and Japan) commit, too. It will commit to a second period, however, only if there is an agreement to develop a new treaty to replace Kyoto after the second commitment period.

Developing countries are wholeheartedly in favour of a second commitment period,  but would like to see a new treaty that complements the Kyoto Protocol— it would bind the US and allow space for long-term finance, while keeping developed country commitments under the Protocol.

Neither of the opposing camps is willing to negotiate, and there is no point in having a new agreement or treaty that only  a few parties will sign onto. According to a presentation by the Third World Network yesterday, there are three possible Durban outcomes:

1. The best deal ever!: Developing countries get everything they want—developed parties commit to a second commitment period of KP, there is a new treaty or decision alongside it that the US agrees to sign onto, in which it and other developed countries agree to longer-term finance. Emissions pledges under the second commitment period of the Protocol will limit global warming to 2°C, maybe even 1.5°.
2. A bad deal: no second commitment period for major developed countries; a new legally-binding treaty to be developed— one that takes several years to develop, and locks in bad practices. Nothing is done for developing countries or the environment, but the multi-lateral negotiating process is saved! Any new regime will not be as strict as the Kyoto Protocol, because no developed countries would willingly sign onto something that asks more of them than the KP already does.
3. The worst deal: Parties are at a standstill in negotiations, are not able to agree, and no deal is reached in Durban.

I understand the importance of optimism for activism. We can’t know what’s possible unless we try, etc, etc. However, I also think that it is both interesting and important to look at the best possible option within the political context. The first option above, which many NGOs and civil society groups are fighting for, is highly improbable (but I do hope that it happens). Most country positions are decided long before Durban—on issues as big as legal form, their positions are inflexible, and it’s too late now to change that. Those battles must be fought on the domestic level, long before COP rolls around. The second outcome is all too close for comfort. A new treaty would be negative progress—the proposals by the US (who holds the most power in the creation of the new regime, remember) allows developed countries to continue polluting while receiving credit for mitigation, and ignores their historical responsibility to help developing countries adapt.

Realistically, our best hope now is to do everything it takes to stop that regime change from being agreed. As Bolivia asserted in Cancun last year,  no deal is better than a bad deal. This is especially true when a legally-binding regime is on the line. We can’t let the urgency of climate change lead us to be roped into a “solution” that will make things worse than they already are.