by nathan thanki

Welcome to the first COP of the rest of your lives. Though Copenhagen will forever remain the most widely observed, undermined, devastated, ruinous UNFCCC meeting, it wasn’t until Durban that the sea change became official. US lead negotiator Todd Stern’s famous “if equity is in, we’re out” sneer epitomised the new paradigm that is being cemented in the climate negotiations. Justice, both inter- and intra-generational, is out the window. Decision 1/CP.17, which established the ad-hoc working group on the Durban Platform for Enhanced Action (ADP), blew the negotiations wide open (as you will recall from my previous entry). While this doesn’t necessarily have to be a bad thing—indeed we are all of course depressed that there hasn’t been a meaningful emissions reductions legal instrument—it depends on how the ADP approaches its work of creating a new legal outcome by 2015. Will it support and complement the Convention and its provisions and principles, or will it undermine them and undercut justice? As this is a country driven process, it is all up to the Parties to direct proceedings…so it is worthwhile to have a look at some of their thoughts regarding the ADP.

In order to start the long, arduous process toward arriving at said new outcome (the exact form of which is contested) the co-chairs of the ADP sent out a call for submissions. In addition to informal consultations with Parties, the chairs from India and Norway— chosen as the result of a fittingly disputed process—wish to seek input from the Parties, who after all will be bound by whatever instrument the ADP yields come 2015. Parties, and indeed civil society organizations, duly obliged and sent in their thoughts on, among other things, the legal form of the ADP, the timeline that the two work-groups should follow, what principles should inform the negotiations (or not), and  even what should happen in the other working groups of the Kyoto Protocol (AWG-KP) and Long term Cooperative Action (AWG-LCA). The very natures of these submissions are indicative of the interconnected nature of all the elements of the climate regime: no “track” can be seen in isolation. Parties are considering all the issues as part of a bigger “package” and success on one front hinges on success on the other. In a nutshell, this is the art, science, or weakness of the multilateral process.

The USA wryly observed in its submission that while Parties have experience in negotiating legally binding treaties that are not applicable to all, such as the Kyoto Protocol, and experience with non-binding agreements that are applicable to all, such as the Cancun Agreements, they do not have experience negotiating a legally binding treaty that is applicable to all. Although this is only a half-truth (the UNFCCC itself IS applicable to all, it just has differentiated responsibilities) it does reveal the difficult path ahead for the ADP. Ultimately, the disagreements that create the tension in the climate regime are not over detail but over principles and worldviews. Perhaps that is why the US wants to first gather conceptual agreement before working for textual agreement (the assertion that text is easy to write made me laugh, though). As to how this could be achieved, the US submission was less clear. It called for an informal process of discussion, claiming that would allow for more frank and open exchanges on areas of disagreement. And regarding the end-form of the outcome, the submission was even less vague. Beyond demanding the outcome must consider the period of time it applies to (i.e. post-2020) and not history—for reasons of responsibility shirking that must be blatantly obvious—the US submission delivered more questions than it did answers. How can the outcome be applicable to all while also being ambitious? How can the ADP avoid “re-inventing the wheel” by using existing institutions and procedures used in Cancun/Durban?

Where the US submission lacked depth to its demands, the African Group submission laid out in detail how the ADP should proceed, and included comments on the legal form of whatever instrument emerges. When it comes to process, Africa is content with the two work-groups and understands that WGI will focus on enhancing the implementation of the Bali Roadmap pre-2020, separately from WGII which is working on the future legal outcome applicable to all Parties post-2020. And when it comes to outcome the African position is even more dissimilar than the US. In their view, the outcome of ADP should be a fair and effective multilateral rules based regime that fulfils the overall objective of the FCCC, keeps warming below 1.5 Celsius, and most importantly is based on principles of the Convention—with particular attention on equity, common but differentiated responsibilities and respective capabilities, historical responsibilities and respect for the development and poverty alleviation priorities of the South. The outcome should reflect a common vision of general commitments which cover a temperature goal, emission reductions goal and trajectory as well as goals for adaptation and means of implementation. It should have a review mechanism and a compliance mechanism that includes National Communications, Biennial Reports and a facilitative mechanism (perhaps not dissimilar to the facilitative compliance of the Kyoto Protocol?). In their view, the operational mechanism built under the Bali Roadmap should be operationalized to support implementation before the future agreement is adopted. The group noted concern about the emission “ambition gap” which leaves 6-11 GT of GHGs unaccounted for in the attempt to stay below 2 degrees, and the fact that current pledges from developed countries, when read in context of the loopholes they contain, actually mean zero reductions (whereas developing countries are doing more than developed). Recommendations include developed countries removing conditionalities and moving to the high end of their reductions pledges, plus amending annex B to the Protocol “with clear entry into force provisions” while developed counties not Party to Kyoto sign on to framework for comparable efforts.

Feeling the sense of urgency as much as Africa was the Least Developed Country group (LDCs): what comes across in their statement is a clear sense that the negotiations are a means to an end. LDCs want to see the LCA track close—but not before either finishing its work or figuring out what bodies can deal with the remaining gaps. The ADP needs to move to substantive discussions which adhere to a time-frame. They suggest getting launched right into the high priority work streams this year, taking time next year to receive input from the latest IPCC report, and having a text on the table by 2014—leaving all of 2015 to the political word-smithing that will inevitably occur. The LDC text assumes a “legally binding protocol” is the outcome; but this could be problematic depending on how one reads the enabling clause in 1/CP.17. The advice for the ADP, though, is to balance ambition and enhanced action between all elements: mitigation, adaptation, means of implementation, loss and damage—rather than just mitigation. The LDCs are keen to uphold Convention principles of CBDR and equity in the new outcome, but only if they do not hold back discussions. This is a departure from many developing countries understanding that because the ADP is under the UNFCCC, it necessarily is based on the same principles. It is the LDCs understanding that the ADP will not duplicate efforts of the LCA and KP, but rather in its pre-2020 work complement both. They lend support to a legally binding treaty that seems similar to Kyoto: “Scattered, bottom-up measures are very unlikely to achieve the large-scale change in emission trends needed to close the emissions gap.”

Given that the Durban Mandate was largely a project of the EU, one could perhaps expect their roadmap to have some detail. But their submissions to date have not given much away: they want a streamlined process to design a “legally binding agreement” for the post-2020 world. Similarly (coincidence?) to the LDCs, the EU would like a chairs consolidated text to be on the table by early 2015.

It remains to be seen how these positions hold out under the pressure of a COP. Earth in Brackets has signed on to this submission along with other justice focused NGOs—that is what we think should happen, what do you think? Comments below, via email, pigeon, post, twitter or facebook…