A brief(ish) history of the UNFCCC and a peek into the future

by nathan thanki

People ask us “what’s going to come out of Doha” as if these negotiations were disconnected from prior negotiations on climate change. A clue is in the name: it is the 18^th Conference of the Parties (COP18). In order to know what to expect in Doha, we must therefore see it in context; this requires both a historical understanding and an understanding of the current political landscape. Developments at COP17 last year in Durban marked a new chapter in the unfolding saga of the climate regime, and we are still trying to decipher what the long term legal and political implications could be. This blog entry will look briefly at the main ‘big picture’ developments, attempt to unpack the outcome of Durban, and offer some outlook for Doha and beyond.

If you’re really rushed for time, my basic conclusion is that while advocates of climate justice might see some wins and many losses on a more technical level in Doha, in terms of the bigger picture we are dangerously close to seeing a double travesty of justice—with not enough being done to avert a climate catastrophe AND the responsibility for that inaction being handed off to the developing world, in spite of historical responsibilities and their need for poverty alleviation. But hopefully you will read on…

History matters

The UN Framework Convention on Climate Change (UNFCCC), adopted along with the CBD (for issues around biodiversity) and CCD (desertification) at the Rio ’92 Earth Summit pioneered the framework approach to multilateral environmental agreements. It has been a dynamic, living Convention since entering into force in 1994. It is, as the name suggest, intended as a framework to be built upon. It has core objectives—contained in Article 2—of keeping greenhouse gas levels at a safe level, and core commitments—contained in Article 4—as well as implicit and explicit core principles which were to inform the further work that Protocols and other outcomes would entail. For example, the Convention clearly differentiates between annex-I Parties (developed world) and non-annex-I parties (developing world) by outlining that they have common but differentiated responsibilities (CBDR) and respective capabilities in regards tackling climate change. This is done on the basis of international environmental law principles such as polluter pays, the precautionary principle, and historical responsibility. Commitments include, among other things, mitigation of greenhouse gas (GHG) emissions, adaptation to climate change, technology transfer, capacity building and additional financial support for developing countries.

In 1995, the Berlin Mandate began the process of negotiating a Protocol to the Convention. The 1997 Kyoto Protocol adds to the framework the necessary targets and timetables for emissions reductions (although they were not ambitious enough) and in doing so upheld the differentiation established by the Convention. The Protocol, though undermined by the absence of the largest historical emitter, the USA, remains the only legally binding instrument with specific emissions reductions targets. As said, these were low—but as the Protocol works by having commitment periods (the first running 2008-2012, and the second up for debate in Doha) the targets could be increased over time. That we are currently seeing a failure to commit to meaningful second commitment period says more about political will than legal architecture.

Given the fact that the Protocol doesn’t deal with all emissions, but only emissions of countries that are a Party to it, the international community had to find a way to complement its efforts. They did so in 2007 in Bali by establishing an ad-hoc working group on long-term cooperative action (AWG-LCA) to work as a second track of negotiations alongside the ad hoc working group of the Kyoto Protocol (AWG-KP). The LCA was established as part of the Bali Action Plan in UNFCCC decision 1/CP.13 to cover emissions that Kyoto doesn’t with “comparable efforts” but also involved provisions on adaptation, finance and technology transfer. The principle of CBDR carried forth in this decision, with many referring to the differentiation in responsibilities between developing and developed countries as the “Bali Firewall.”

That firewall held firm until the last night of COP17 in 2011, when Durban decision 1/CP.17 established a new negotiating track: the ad-hoc working group for the Durban Platform on Enhanced Action (ADP) to be agreed by 2015 and enter into force by 2020, with the intention of having universal application (i.e. all Parties, regardless of their current categorization as annex-I/non annex-I would be bound by it). This was a major point of controversy and contention in Durban, and was only the result of some very strategic maneuvering by the EU that involved peeling the small islands (AOSIS) and least developed countries (LDCs) off the larger group of developing countries (G77). India, Venezuela, Bolivia, Nicaragua, Pakistan, Egypt and others argued passionately (captured in our report from the final night) but ultimately the decision went through, and so we must attempt to understand what it could mean for the climate regime as a whole.

Legal menu

What the divergent opinions and assumptions implicit in the country submissions (explored further in my next blog entry) show is that there is ambiguity in the work of the ADP. That ‘creative ambiguity’ is going to come back to haunt parties, either in the final days or hours of COP21 in 2015, or in the subsequent years of interpretation and implementation. The ambiguity lays, of course, in the language from Durban—that 11^th hour effort to reach an agreement—replicated below.

UNFCCC decision 1/CP.17

2.  Also decides to launch a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties, through a subsidiary body under the Convention hereby established and to be known as the Ad Hoc Working Group on the Durban Platform for Enhanced Action;

What does an “agreed outcome with legal force” mean exactly? According to legal experts such as Lavanya Rajamani we can interpret the enabling clause in two ways. If one reads “under the Convention” as qualifying the wording “agreed outcome with legal force” then the outcome would have to be a protocol, amendment to the Convention or the Kyoto Protocol, or an amendment to their annexes. However, if the wording “under the Convention” is read as qualifying “protocol, another legal instrument, or an agreed outcome with legal force” then the outcome could be a COP decision which has legal force in domestic law, rather than international law. So the country submissions that refer to a protocol in 2015 might be premature. Indeed, as Dan Bodansky has pointed out, the mandate for negotiations is weaker even than the General Assembly mandate which culminated in the Convention itself, with “agreed outcome with legal force” having no precedent in international law.

Anyway, what are the advantages or disadvantages to the various interpretation of this formulation? Clearly the demands for the outcome to be a new Protocol are gathering momentum, and one would assume that a Protocol is desirable because of the weight it carries. If we were to adopt a spectral view of environmental law, then a treaty (which entails specific obligations) is far over to the “hard law” side. Such a treaty, as Kyoto, necessarily forces domestic law to sync with international law for compliance. In contrast, COP decisions—such as the Bali Action Plan— while technically legal decisions, are more on the “soft law” end of the spectrum. The debate between whether hard or soft law is more effective is deep and I’ll save it for another day, but suffice it to say that soft law can perhaps be more ambitious whereas hard law can have technical/legal compliance. Of course, it also depends on what we mean by effective—in the case of UNFCCC, the benchmark should be made clear by Article 2. If the objective of stabilizing greenhouse gas levels so as to avoid “dangerous” interference with the climate system within a time frame that allows natural adaptation and avoids threatening economic development and food production is not met, then the UNFCCC is ineffective. “Why has this been the case?” is of course another question, laden with tales of bad-faith, circumstance, powerful lobby, neocolonialism and special interest. But others will tell that tale.

Returning to the hard questions that decision 1/CP.17 asks, we see that the path forward isn’t going to be an easy one to tread. For instance, it recommends closing the AWG-LCA in Doha. True, the LCA is by definition ad-hoc and so should close, but surely not before it has completed its work? The problem now lies in how and where to “migrate” the various issues that have been worked on since 2007 without losing progress. Country submissions also indicate that the developing countries would like to see the work completed; not forgotten about in the mad dash to the new platform. Perhaps in a more unspoken way, the Durban Mandate also creates an awkward tension with the Kyoto Protocol. From the state of play currently, Parties seem to want shot of their KP commitments—with only the EU and Australia signed up to weak targets for the second commitment period of 2012-[2017/2020]—and the ADP provides a reasonable excuse. Or rather, it provides a distraction and a delay instead of the way to an ambitious global treaty to reduce emissions to safe levels. So how the ADP manages to work on its pre-2020 agenda without undermining the Protocol is unclear.

Upcoming negotiations in Doha are unlikely to further clarify such ambiguities and tensions. More likely they will carefully walk the tightrope of international relations, which—though extremely effective in keeping up appearances and allowing for trade, diplomacy, politics to carry on—is utterly ineffective at dealing with the issue at hand with any semblance of the urgency needed.

Crystal ball and my two cents

Unfortunately 1/CP.17 doesn’t give recommendations, even on what the objective or content of such an outcome would be (although as it is under the Convention we assume it would adopt the Convention’s objectives). The outcome could be prescriptive, with targets, timetables, and compliance mechanisms like the Kyoto Protocol; it could be facilitative such as the Cancun Agreements with a system of pledge and review complemented by strict measuring, reporting and verification; or it could be a mix (prescriptive in some elements, facilitative in others).

It’s all very well to say what the ADP could yield, but it’s more pressing to ask what it should yield. A major criticism of the way the ADP was created, which continues as it is elaborated, is that the developed world is reneging on prior commitments. That the idea of historical responsibility for emissions and the corresponding action it demands be seemingly forgotten is further proof to many developing countries that the developed Parties are not serious about tackling the climate crisis. It is instead seen as an unfair shifting of the burden onto the global South. A just outcome from the ADP would have to be based on the principle of equity, infused as it is with a sense of urgency and ambition. The two go hand in hand. As the scale of the challenge becomes ever grander, the effort to address it must rise. Yet for that effort to be disproportionately undertaken in the developing world is a double injustice: ignoring history as well as current development circumstances and priorities, asking the worlds vulnerable to shoulder the burden to fixing a problem they did little to create. As the ADP charges onwards to the 2015 deadline, the sad fact is that the sense of urgency may be too strong for some especially vulnerable countries (small islands and LDCs) and they, out of desperation, will fracture the G77 developing countries and perhaps even their own groups in the push for any outcome. Luckily there are still 3 years remaining.