By Lim Li Lin
There are two main treaties in the global climate change negotiations, the UN Framework Convention on Climate Change (UNFCCC), which was part of the package of environmental treaties that was adopted in Rio in 1992 and entered into force in 1994, and the Kyoto Protocol (KP), which is linked to the UNFCCC and was adopted in 1997. The KP entered into force in 2005.
An important point about these treaties is that they are multilateral treaties under the UN. Under these two treaties there are two subsidiary bodies: the Joint Implementation Committee (JIC) and the Scientific and Technological Advice Committee (STAC). These two bodies support the KP and the UNFCCC.
Furthermore, there is the Conference of the Parties (COP) which is the supreme decision making body of the UNFCCC. The KP also has a supreme government body known as the COP MOP (Meeting of the Parties).
The two subsidiary bodies (JIC and STAC) serve both bodies and sometimes when parties have an issue that they wish to move, they do so down to these bodies.
Under the UNFCCC, the main issues dealt with are mitigation – both for developed (Annex 1) countries and developing countries – adaptation, finance and technological transfer.
One of the key principles in this area is laying the foundation for equity and common but differentiated responsibility. This is because Annex 1 countries are more responsible than others for climate change and have a different responsibility to take action. That was the bargain in Rio and is why developed countries are supposed to take the lead when it comes to climate change action.
Another principle is the promotion of sustainable development and its integration with national sustainable development programmes. This also addresses the issue of the international economic system. It also touches on one of the key issues in dealing with climate change: If countries have to start moving towards low or zero carbon economies this may affect their economies and economic development, so the big fear is around economics and economic competitiveness.
Those countries that take on commitments have to realign their national legislation to ensure that their emission reductions come down. This may also require that these countries put in place new legislation to oblige their industries to produce more environmentally sound goods. This comes at a cost, so the argument proffered is that other countries that do not have such measures have an economic advantage.
Mitigation has two branches: Annex 1 mitigation and non-Annex 1 mitigation, dealt with by the KP. The KP requires developed countries to reduce their emissions by X amount, and in the first commitment period from 2008 to 2012 the figure was only 5 per cent for all Annex 1 countries. There are individual commitments by the Annex 1 countries in the European Union (EU), Japan, Russia, and so on, and these vary, but together they aggregate to 5 per cent, based on 1990 emission rates.
Countries are now negotiating the second commitment period, which would start in 2013. The negotiations also concern an end date and what the target figure should be. This has proven, so far, to be very contentious in the negotiations.
The talk here is around the gap which will result if Parties does not have anything in place by 2013. If the negotiating parties do not adopt something in Durban, South Africa in December 2011, the world will most probably have a gap, since, even if a deal is reached in Durban, that would leave only one year for it to be enforced and usually a ratification process takes quite a number of years.
For the second commitment period, there are a number of positions on the table:
- The African group has called for a 40 per cent reduction by 2020, while in Copenhagen this was 45 per cent.
- The small island states and LDCs have always consistently said that there should be at least a 45 per cent reduction by 2020.
- Bolivia and others, including Venezuela, Malaysia and, at the time, even Ethiopia, requested 49 per cent and later revised this to 50 per cent and stipulated that this had to be domestic reductions without any offsetting. This was for the commitment period 2013 to 2017.
Contrasting this with what the developed countries are pledging sets out the global picture even more clearly. A calculation of the total pledges without the USA comes to about 17-25 per cent, which is very far from 40-50 per cent. If the US emission cut is added to those of other developed countries, it can result in a figure between an increase of six per cent and a decrease of 16 per cent.
The flip side of the Kyoto Protocol gives parties use of flexible mechanisms or market mechanisms, such as emissions trading and the Clean Development Mechanism, to meet their targets. These allow developed countries to meet the 5 per cent target abroad – they can pay for projects in developing countries and use those credits to meet targets.
The Kyoto Protocol also has very stringent rules on how countries do their reporting, accounting review, and compliance measures. This has not been fully implemented because the first commitment period has not yet ended, so it remains to be seen how effective the compliance system really is. At least on paper, it is one of the strongest compliance measures in an international environmental agreement.
In Bali in 2007 Parties basically agreed that under the Bali roadmap there would be two tracks of negotiations. The first would take place within the Ad-Hoc Working Group on the Kyoto Protocol (AWG-KP) and concerned further commitments under the KP for the second commitment period that starts in 2013.
What was new in Bali was the Ad-Hoc Working Group on Long Term Cooperative Action (AWG-LCA), established under the UNFCCC. The AWG-LCA mandate is about enhanced implementation of the climate convention.
The two tracks are supposed to have two separate outcomes – under the AWG-LCA they actually never quite agreed what the outcome would be, so it could mean anything and it has yet to be decided whether it will be articulated through COP decisions or a new protocol. A new protocol would be a new international agreement that is legally binding. A COP decision is not binding in exactly the same way as a treaty, however, it is binding in its implementation.
There has been widespread misinformation that the Kyoto Protocol was going to expire in 2012. This is deliberate misinformation peddled mainly by the developed countries that do not want the Kyoto Protocol. The term the developed countries were using was ‘post-Kyoto’, implying that the Kyoto Protocol is going to end and that therefore Parties would need a new treaty to replace it. That is simply not true.
The Kyoto Protocol is not going to end at all – only the first commitment period will end in 2012, everything else stays in place. When the first commitment period ends, countries are legally obliged to negotiate the second commitment period and that is what they have been doing since 2005.
Why was this misinformation spread? Because the developed countries do not want the Kyoto Protocol. The idea behind killing the Kyoto Protocol and having one single agreement is basically to bring down the distinction between Annex 1 and non-Annex 1 countries and do away with the principle of common but differentiated responsibilities.
The other problem is the USA – they refused to join the Kyoto Protocol and walked away from it. The USA is the biggest absolute historical emitter and the biggest per capita emitter of greenhouse gasses today. So they are a really big problem and they are not part of the Kyoto Protocol. Some developed countries also want some non-Annex 1 countries to join them and take on more legally binding targets than those currently required. The whole idea behind that is to do away with internationally binding targets and have a pledge and review system and new market mechanisms. All in all, this would be a really bad deal.
The fundamental problem is that if there is a new treaty, then there is nothing to stop countries like Russia and Japan from choosing to have lower obligations than those of the Kyoto Protocol, especially if the USA is part of that new treaty.
Within the Kyoto Protocol, the part that civil societies in particular loathe is the market mechanisms. There are many groups that have been campaigning against the Kyoto Protocol for many years because of the market mechanisms. They really need to be rolled back and eliminated. There should not be any new market mechanisms, but under the new negotiations of the AWG-LCA, Annex 1 countries are already trying to migrate all of the market mechanisms from the Kyoto Protocol into a new treaty.
We need to be aware of these dynamics because we need to ensure that if we are not going to create a new ship for all of the developed countries to jump into, then market mechanisms must not be migrated into the other track of negotiations. Ultimately, Parties, especially developing countries, may need a process within the COP MOP to review and attempt to eliminate the market mechanisms.
This special issue is jointly produced by Pambazuka News and African Agenda, a publication of Third World Network-Africa.
Lim Li Lin is a legal expert with Third World Network (TWN).