Policy Update #13

Scenarios and Sticking Points under the Durban Platform: The Long and Winding Road to 2020

Given the outcomes of COP 17 in Durban, South Africa, and subsequent negotiating sessions in Bonn and Bangkok in 2012, achieving “success” under the newly formed Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) is proving to be a formidable task. Nonetheless, Parties have begun to envision a future where all major emitters may be under the same “mitigation tent.”

As COP 18 quickly approaches, it is important to consider where we have come since Durban in order to understand where things may go in Doha—and beyond. This brief commentary provides an overview of the current state of play in the negotiations, and explores four potential scenarios under the Durban Platform; including what each would mean in the context of reaching a new, inclusive and effective international climate change agreement.

Measured Optimism Leaving Durban: Setting the Stage for Doha

As in years past, initial relief and excitement (for some) over the outcomes of COP 17 in Durban, notably the agreement to establish the ADP, quickly dissipated into sober second thoughts and questions around the scope and role of the ADP in the negotiating process. There are some who argue that, with the establishment of the ADP, now is the time for agenda-setting, exchanges of views, and slow and steady progress under this new negotiating track. On the other side, there are those who argue that, with the future of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (LCA) hanging in the balance, and a lack of agreement over the length of the second commitment period of the Kyoto Protocol (not to mention the residual effect of the absence of several key Parties, including Canada, Russia and Japan), the negotiations could be in as precarious a place as ever.

These dynamics were the central wedge when delegates picked up ADP negotiations in both Bonn and Bangkok this year. Several key negotiating dynamics and issues further crystalized in Bangkok, and will likely define discussions in Doha. Most notable among these:

Lack of Agreement over the Intended Outcome of the ADP, Timelines and Relationship with the LCA: The ambiguity of the Durban Platform language was both a necessary concession to achieve agreement in Durban and a flexibility measure for future negotiations. But because of this, Parties remain significantly divided as to the form of agreement the ADP is seeking to reach. There is similar ambiguity around the relationship between the various elements and mechanisms that have been negotiated under the LCA and how these will interplay with the ADP negotiations. The division of the ADP into two work streams—one addressing the framework for agreement and mechanisms and a second addressing mitigation ambition and exploring ways to close the ambition gap—creates an even more complex negotiating environment, with seven different negotiating tracks set to meet at COP 18. There was agreement in Durban that the LCA “shall be terminated” in Doha—though the Bangkok talks did little to clarify whether or not that will be attainable at COP 18. It is unclear how certain issues under the LCA where agreement has not been fully reached would be treated once the LCA concludes—that is to say, whether they will be taken up by the Convention's subsidiary bodies, transferred to the ADP or dropped entirely. As a result, progress under the ADP and LCA are increasingly interdependent and potentially repetitive. Many Parties are only willing to terminate the LCA if it is clear how the issues under the LCA will be carried over or included in discussions (and a potential future agreement) under the ADP. However, without clarity on the full agenda of the ADP, other parties are hesitant to close discussions under the LCA and “switch over” to the ADP track. Unless resolved at COP 18 or shortly thereafter, these dynamics could lead to a significant duplication of work between the LCA and ADP, or a further stalling of progress altogether.

Divergent Interpretations of Convention Principles: One of the key drivers of disagreement over the nature of a future agreement under the ADP is the interpretation of the language and principles in the Convention. During the Bangkok discussions, many countries reaffirmed the primacy of the Convention, and that the ADP's work should in no way rewrite it. While ‘Common But Differentiated Responsibilities' (CBDR) was not explicitly in the Durban outcomes, many developing countries invoke the Convention as a way to ensure its implicit inclusion in the ADP. There is also a growing recognition among many countries that, as the European Union has pointed out explicitly, responsibilities and capabilities evolve over time and there is a desire for a more nuanced understanding of CBDR to emerge. If negotiators can find a constructive space to discuss interpretations of this “differentiation” in Doha, there may be meaningful progress under the ADP. If not, they run the risk of entrenching the ADP in the Annex I/non-Annex I divide of the Kyoto Protocol.

The Fate of the Kyoto Protocol: The second commitment period of the Kyoto Protocol (CP2) remains a key piece of the negotiations puzzle. For many developing countries, agreement on CP2 is required before they will support tangible work under the ADP. Neither Bonn nor Bangkok brought resolution on the question of length and targets of a second period. The terms and positions are clearer now, but the path forward is less so. Given the time needed for domestic ratification to take place, most experts would argue that the time to avoid a gap between the first and second commitment periods has already passed; but in the negotiations, the expedient implementation of CP2 (for those participating Parties) is still an important piece of the political puzzle. It is very much connected to the ADP and LCA, particularly for those least developed and developing countries that see this second period as the only potential bridge to future agreements in the long term—or at the very least to avoid a legal vacuum in the near term. This discussion will be an important one to watch in Doha.

While there were no major breakthroughs (or breakdowns) in Bangkok, the latest round of talks made it increasingly clear that while the ADP presents a potential venue for “new” discussions on an inclusive post-2020 climate change agreement, many of the same “old” issues and roadblocks dot the road ahead. It is equally clear that, whatever the future holds, action will be driven by much more “bottom-up” and nationally appropriate frameworks and commitments than the “top-down” approach of Kyoto.

Making the Durban Platform Count: Possible Scenarios Moving Forward

Despite persistent challenges and a negotiating landscape fraught with divisions, the ADP does afford negotiators the opportunity to envision (and negotiate) a future agreement that could look very different from those of the past. Taking the text of the Durban Platform, there may be a number of scenarios for the terms of the potential form of a post-2020 agreement:

  • A legally binding protocol, including commitments for all major emitters
  • Another legal instrument under the Convention to reflect commitments by all major emitters
  • Another “agreed outcome with legal force”
  • No agreement under the Convention

Negotiators, policy-makers and civil society alike have been left to work through the various moving pieces in the negotiations, and determine the best path forward in light of the political dynamics that will shape future discussions under the Convention.

A Legally Binding Protocol, Including Commitments for All Major Emitters

The most ambitious but least plausible outcome is a legally binding protocol (under Article 17 of the Convention) with mitigation commitments by all major emitters. Such a protocol could be designed in a similar top-down manner to the Kyoto Protocol, including an aggregate objective, mitigation commitments, reporting deadlines with some form of international oversight and review, and the inclusion of market mechanisms. However, a post-2020 protocol is likely to differ from Kyoto insofar as compliance mechanisms will likely be less stringent in order to gain acceptance by key Parties such as the United States, China and India. The phrase “legally binding” means different things to different people and elements of differentiation highlighted by several developing countries as of late will play a particularly important role under a more stringent scenario.

Given the size and scope of negotiations now, it would seem extremely difficult for a full-fledged protocol to be negotiated in the next three years (2012–2015), as stipulated by the Durban mandate.

Another Legal Instrument under the Convention to Reflect Commitments by All Major Emitters

Both the Convention and ADP language allow several options, other than a new protocol, that could contain an additional regime for the establishment of mitigation commitments by all countries. The instrument would most likely take the form of an amendment of the Convention under Article 15, or a new or amended annex under Article 16 to include all major emitters.

It seems likely that Parties' differing interpretations of the principles of CBDR and respective capabilities will continue to underpin any outcome of the process. Although the interpretation and content of such a principle varies among countries, it does not preclude the assumption of stronger commitments by all major emitters. If an amendment were to be made to Annex I of the Convention to include all major emitters, it would only come as a result of significant softening related to the principle on the part of countries like China and India, similar to the dynamics under the first scenario. This type of amendment would likely give rise to strong conflict among developing countries, given the changing nature of the principle of CBDR. The current emissions levels of some major developing countries have surpassed historical emissions of many other developed countries, making “historical responsibility” an increasingly difficult argument for key developing countries to invoke.

Another “Agreed Outcome with Legal Force”

Perhaps the vaguest of the options included in the initial ADP platform, this scenario could describe any possible outcome under the UNFCCC, as it is itself a legal instrument. We interpret it to entail a decision within the Convention, agreed by consensus among all Parties (agreed outcome), that utilizes existing legal instruments or develops compliance mechanisms without resorting to a new instrument (legal force).

Such an outcome is also much more likely to be bottom-up in nature, relative to the previous two scenarios. This alternative potentially allows for the fastest process for adoption, as it could entail countries building on the Copenhagen Accord, the second commitment period of Kyoto, or other publicly-stated targets, which, in most cases, expire in 2020. Most major emitters have adopted domestic emissions reduction targets, albeit not yet in comparable form or under one singular agreed-upon framework. However, obtaining consensus for a decision of this nature would likely require an increase in the ambition of major emitters' country targets from what has been presented since Copenhagen. Because of its lack of structure and ratified legal force, it is difficult to see developing countries supporting this form of outcome, unless targets not only are much stronger, but also include a clear indication that the countries proposing the targets stand behind them (i.e. that the targets have meaning) and there is a clear indication that financing goals will be achieved.

No Agreement under the Convention by 2015

The potential that countries may not reach an agreed outcome under the ADP by 2015 must be considered, especially given the historically slow pace of negotiations and challenges to adhering to an ambitious timeline. No agreement under the ADP by 2015 could result in a number of different scenarios. It may simply result in continued negotiations under the ADP or other tracks of negotiation (as was the case at COP 16 when the LCA and KP tracks were extended beyond their anticipated timelines). Alternatively, it may give rise to the adoption of agreements in other fora outside of the UNFCCC (such as the G20 or Major Economies Forum) or within bilateral or regional schemes (agreements to participate in the European Union Emissions Trading System, for example). Such agreements could lead to policy fragmentation and potentially serious concerns about comparability of effort, the use of border carbon adjustments and an increased potential for trade disputes, as the ongoing experience with the European Union aviation levy has exemplified.

A worst case scenario would be an impasse or complete breakdown in the UNFCCC process altogether. There is some concern that without any major breakthroughs at COP 18, the process could see complete paralysis in the coming years. The parallels to the World Trade Organization (WTO) Doha Rounds are not lost on the climate change negotiators as they head into Doha themselves.

Let Not the Perfect Be the Enemy of the Good

The negotiations can take a number of paths in the years leading to 2020, and more critically to 2015, when the Durban Platform is to produce an outcome for implementation by 2020. The ADP has added yet another layer of complexity and conflict to the negotiating process, but it can provide a practical and inclusive venue for constructive discussions on a post-2020 agreement. It will be in Doha that a path forward for the ADP could really be forged. Parties must work towards an equitable outcome under the ADP that reflects not only mitigation commitments from all major emitters, but also includes a broad range of supporting mechanisms to help both developed and developing countries reach their commitments.

The lessons of the past and the political realities of the present lead to the conclusion that an ambitious outcome in the long term can only be achieved if a number of loose ends are tied up in Doha. The fate of the LCA, the second commitment period of the Kyoto Protocol, and the setting of agendas and potential timelines under the ADP all will  be considered. The negotiations are undoubtedly complex, and the future of the ADP is very much dependent on commensurate progress under the KP, LCA, and overarching issues of the level of ambition and financing commitments. For COP 18 to be considered a success, negotiators must balance cautious progress under the ADP with outcomes under the other negotiating tracks. Rushing outcomes prematurely under the ADP could risk years of progress made elsewhere, but leaving the ADP fully at the behest of the other tracks could lead to the full entrenchment of the same old divisions in this new venue for negotiations.

In the words of the COP 16 president, one must not let the perfect be the enemy of the good. Those searching for perfectly designed processes and air-tight commitments are unlikely to ever find them under the UNFCCC. Parties must seek to see the bigger picture and choose the path most likely lead to a politically feasible climate change agreement that allows for an effective global response to the risks and impacts of climate change.

This Policy Update is drawn from a full commentary, available here.