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Unconstructive Ambiguity in the Durban Climate Deal of COP 17 / CMP 7 Remi Moncel

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Unconstructive Ambiguity in the Durban Climate Deal of COP 17 / CMP 7 Remi Moncel Sustainable Development Law & Policy Volume 12 Article 3 Issue 2 Winter 2012: Climate Law Reporter Unconstructive Ambiguity in the Durban Climate Deal of COP 17 / CMP 7 Remi Moncel Follow this and additional works at: http://digitalcommons.wcl.american.edu/sdlp Part of the Environmental Law Commons Recommended Citation Moncel, Remi. "Unconstructive Ambiguity in the Durban Climate Deal of COP 17 / CMP 7." Sustainable Development Law & Policy 12, no. 2 (2012): 6-11, 52-56. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Sustainable Development Law & Policy by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. UNCONSTRUCTIVE AMBIGUITY IN THE DURBAN CLIMATE DEAL OF COP 17 / CMP 7 by Remi Moncel* INTRODUCTION rise in global average temperature to two degrees Celsius above 14 “The Durban conference in December 2011 marked pre-industrial levels. Thus, governments’ ambiguity may have a breakthrough in international efforts to combat climate de facto, and perhaps inadvertently, locked the world into a high change.”1 It is in these terms that the European Commission emissions trajectory. (“EU”) Commissioner Connie Hedegaard described the 17th In that context, the purpose of this article is to evaluate the Conference of the Parties (“COP 17”) to the United Framework Durban outcome in terms of its ability to set the climate change Convention on Climate Change (“UNFCCC” or “Convention”) regime on a path to limit the global average temperature rise to 15 and the seventh meeting of the Conference of the Parties serving two degrees Celsius above pre-industrial levels. Comprehensive as the Meeting of the Parties to the Kyoto Protocol (“CMP 7”), descriptions of the outcome of the conference have been written which took place this past winter in South Africa.2 elsewhere. Instead, this article focuses on some of the most In Durban, governments agreed to a package composed of central provisions of a Durban-created future international cli- three main elements: 1) a continuation of the Kyoto Protocol mate agreement intended to facilitate international cooperation 16 with a second round of quantified mitigation commitments to in meeting scientifically driven mitigation goals. Specifically, be defined for a subset of Annex I countries;3 2) operational a review of key agreement provisions finds that, while it is pre- decisions implementing the 2010 Cancun Agreements;4 and mature to cast a definitive judgment on the success of the Durban 3) the launch of a process for a new international agreement conference, the adequacy of a global response to climate change by 2015 applicable to all Parties.5 The Durban Package is the remains unclear and presents cause for concern. latest development in the climate regime: the constellation of The article assesses three of the key issues under negotiation international, national and sub-national institutions and actors in Durban as an illustration of the phenomenon of unconstructive with capacity, expertise and authority to address climate change. ambiguity: the legal form of a future agreement; national and While some commentators expressed skepticism on this out- global mitigation commitments; and equity. In the conclusion, the come,6 the dominant view appears to be one of cautious – and at possible causes and implications of this outcome are discussed. times enthusiastic – optimism, similar to the opinion expressed THE LEGAL FORM OF A by Commissioner Hedegaard.7 FUTURE CLIMATE AGREEMENT However, several fundamental political and technical ques- tions were left unanswered in Durban.8 Because of disagreements, The question of the legal form for a future climate agree- negotiators delayed decisions or used ambiguous wording to ment to complement or replace the Kyoto Protocol was central in the Durban negotiations in 2011.17 express political will.9 Chief among these ambiguous phrases is Views diverge among “agreed outcome with legal force,” a phrase that seemed to serve scholars and advocates on whether voluntary or legally binding as a compromise for the legal form of a future climate agree- commitments lead to greater ambition and implementation of international commitments to reduce greenhouse gas (“GHG”) ment during the final hours of the talks.10 This article examines emissions by national governments.18 this emblematic formulation and other important considerations The benefits of a legally- beyond legal form that were left unanswered or ambiguous. binding international agreement may include greater legal Scholars have argued that regimes can evolve gradually certainty, increased incentives for domestic implementation and compliance, opportunities for legal challenges, and additional and that small steps can have significant effects over time.11 leverage for civil society to hold their governments account- Borrowing the approach former U.S. Secretary of State Henry able.19 Kissinger, compromises on language may be a manifestation of By contrast, others argue that a voluntary framework 20 “constructive ambiguity”12 that would allow the climate regime would lead to greater participation and more ambitious goals. to grow stronger incrementally.13 While recognizing the benefits of an incremental approach, it is worth considering what growth is sufficient for the climate regime to be effective and whether *Remi Moncel is an Associate in the Climate and Energy Program at the World such a threshold was secured in Durban. There is a risk that Resources Institute (“WRI”), a global environmental think tank. An expert on the Durban outcome in fact yielded unconstructive ambiguity international climate policy, his work examines the role of various institutions in the sense that, by avoiding difficult, time-sensitive political and processes within and outside the UNFCCC in promoting collective action on climate change and effective policy implementation. This article reflects questions today, negotiators may have missed the narrow win- the views of the author alone and not those of WRI. The author is grateful to dow of opportunity that science suggests remains for limiting a Paul Joffe, Kelly Levin and Jennifer Morgan for their helpful comments on earlier drafts. 6 SUSTAINABLE DEVELOPMENT LAW & POLICY In some ways, the Durban conference defied the odds with such as new protocol under the Convention or an amendment a decision that signals a move towards a “top-down”21 climate to the Convention.38 In fact, several developed and developing regime after many had assumed that the regime would take a countries, as well as observers, interpret the Durban outcome as “bottom-up” form in the aftermath of the Copenhagen Accord22 presaging a new legally binding instrument.39 In addition, in the and the Cancun Agreements.23 Several elements of the Durban fall of 2011 and during the negotiations in Durban, the EU made outcome suggest a possible shift towards a more inclusive mul- clear that it would agree to a second commitment period of the tilateral legal framework. However, ambiguous compromises in Kyoto Protocol only if other countries adopted a roadmap toward Durban limit the ability to know with certainty the structure of a universal, legally binding agreement under the Convention the future climate regime. applicable to all Parties.40 A REINVESTMENT IN MULTILATERALISM REMAINING AMBIGUITIES ON LEGAL FORM The Durban Package24 included an agreement to continue Despite the noteworthy expressed willingness by some the Kyoto Protocol after its first commitment period, which ends Parties to be bound by a common legal instrument beginning in 2012.25 The EU has agreed to a second commitment period.26 in 2020, the ambiguity of the carefully crafted phrase “agreed Although the end date of this second commitment period remains outcome with legal force” continues to hide diverging views to be negotiated,27 a new set of mitigation commitments by the about the legal form of this future agreement and the commit- EU, and possibly other developed countries such as Norway, ments it will contain. The terms “a protocol” and “another legal Switzerland, Australia and New Zealand, will begin on January instrument” have a clear precedent in international climate law 1, 2013.28 Beyond 2012, however, critics correctly point out that, as both terms were used separately in the 1995 Berlin Mandate given the absence of involvement in this process from other devel- that led to the adoption of the Kyoto Protocol in 1997.41 The oped countries like the United States, Canada, Russia, and Japan, two terms convey the notion that the agreement to be negotiated and quantified commitments from developing countries, the Kyoto will have a legally binding form.42 By contrast, the novel phrase Protocol will only include commitments from countries repre- “agreed outcome with legal force” has not been used in interna- senting at most fifteen to sixteen percent of global greenhouse tional climate law43 and appears to be new to international law as gas emissions,29 and is therefore inadequate.30 However, there well.44 Since the meaning of the phrase is uncertain, the Durban are several benefits to the continuation of the Kyoto Protocol. It outcome does not necessarily imply that the agreement set to be preserves certain multilateral rules and institutions that can serve adopted in 2015 will be legally
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