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The Challenge of Legal Form at the Durban Climate Talks

The first commitment period under the Kyoto Protocol comes to an end in 2012, and the negotiations under the UN Framework Convention on Climate Change (UNFCCC) have yet to reach an “agreed outcome” to regulate greenhouse gas (GHG) emissions post-2012. This impasse raises the prospect that in a year’s time – even as the scientific evidence mounts that human impact on the climate system is veering out of control – there will be no internationally agreed legally binding commitments regulating greenhouse gas emissions. For some observers of the climate regime this gap in the legal regime is a welcome development. They argue that by side-stepping the issue of legal form, the two previous UN climate conferences in Copenhagen (2009) and Cancun (2010) were able to generate unilateral, non-binding “pledges” from 90 countries that for the first time give a sense of what the bulk of the international community might do to move economies toward a low-carbon path.

However, if you scrape beneath the surface of many of these pledges, you will discover a high degree of imprecision and conditionality that could be expected from a series of unilateral declarations. Even taken at face value, collectively the Cancun pledges fall well short of the level of effort necessary to prevent the worst impacts of global warming.

For these reasons, most countries continue to recognize that, in principle, the climate challenge merits a legally binding response, and the seriousness of purpose that only the process of negotiating and concluding a legally binding agreement can bring. But they have yet to agree on which countries should be bound by what specific commitments, and by when. For these reasons, the issue of “legal form” of the future climate regime is likely to dominate discussion at the Conference of the Parties (COP17) in Durban.

In particular, the parties to the Kyoto Protocol (KP) are called upon to decide whether to adopt a legally binding second commitment period and the parties to the UNFCCC must decide whether to adopt a mandate to conclude their negotiations with new legally binding commitments. To appreciate why everyone is calling in their lawyers, the legal form of a future climate change regime needs to be understood on at least three levels: the technical, the political, and the symbolic.

The legal form of a future climate change regime needs to be understood on at least three levels: the technical, the political, and the symbolic.

The Legal Technicalities

Under international law, countries become legally bound when they formally convey their consent to be bound, most typically by becoming parties to a legally binding agreement such as a treaty or a protocol to a treaty. Typically the agreement is then ratified through passage of legislation by a national parliament, which makes the agreement legally binding under each country’s domestic law as well. The UNFCCC and the KP are both legally binding agreements.

Importantly, a legally binding agreement may (or may not) contain legally binding commitments for some or all of its parties. The Kyoto Protocol, for example, contains legally binding targets and timetables for GHG emissions reductions by all industrialized countries that ratified it (i.e., all but the United States), but contains no such commitments for emerging economies (e.g., China, India, Brazil, and South Africa).

The differences in commitments between and among developed and developing countries in the 1997 Kyoto Protocol reflect the principle of common but differentiated responsibilities and respective capabilities, acknowledging the historical responsibility and greater financial and technological capacities of countries that industrialized in the last century. Any future set of legally binding commitments will also need to reflect this principle, but in a way that recognizes how dramatically patterns of emissions and capabilities have shifted since 1997.

The Political Realities

The European Union has signaled that it is open to binding itself to a second commitment period if it is joined by other industrialized country parties to the Kyoto Protocol, and if other major economies that don’t currently have legally binding emissions reduction commitments under the KP (including China, India, and Brazil, as well as the U.S.) agree in Durban to a mandate to negotiate these commitments in the near future.

The United States has also indicated that while it will not join a Kyoto Protocol second commitment period, the UNFCCC negotiations should aspire to reach a legally binding agreement. But at the same time the U.S. insists that there must be “symmetry” between the legal form of commitments it undertakes and the commitments undertaken by all other major economies – in particular China. In other words, while the U.S. is prepared to acknowledge that emerging economies will undertake less ambitious commitments than industrialized countries, the legal character of the commitments of all major economies should be the same.

The BASIC countries (Brazil, South Africa, India, and China) representing the major economies support adoption of a legally binding second commitment period under the Kyoto Protocol for industrialized countries. They have also acknowledged the importance of a legally binding agreement under the UNFCCC (at the very least to cover U.S. emissions), but have stated, with varying degrees of insistence, that any commitments within that agreement need to respect the principle of common but differentiated responsibility in both legal form and their content. In other words, as a group the BASIC countries remain reluctant to sign up to legally binding commitments.

Most of the remaining governments, including least developed countries, small island and low-lying developing countries, which are most concerned about -- and least responsible for -- the impact of global warming, insist on a both a second commitment period to the KP, as well as a more comprehensive agreement with legally binding commitments covering the emissions of all major emitters.

More Than Symbolic Virtues

The gap in country positions will not be bridged in time to reach agreement in Durban on the details of legally binding commitments for all major emitters. However, the fact that most governments continue to associate the importance of climate change with the need for a legally binding response must be captured and codified in Durban. Preferably this would come via the adoption by the Kyoto Parties of a Kyoto Protocol amendment creating a second commitment period for themselves, and adoption by the COP of a mandate to negotiate a comprehensive, ambitious, and equitable set of legally binding commitments applicable to all major economies as soon as possible.

A legally binding agreement is the highest form of expression of political will that the international community can bestow.

To balance concerns about common but differentiated responsibilities and legal symmetry, the Kyoto Protocol’s second commitment period could continue to cover industrialized country emissions, and be designed to enter into force or merge into a new agreement when the more comprehensive commitments being negotiated under the UNFCCC are concludedsuccessfully. Furthermore, the relative ambition of the commitments contained in a new legally binding agreement could be highly differentiated among countries.

A legally binding agreement is the highest form of expression of political will that the international community can bestow. Such agreements have been shown to bring a range of benefits through domestic ratification, the creation of international institutions, and the attention of high-level government officials, civil society, businesses, the media, and the broader public. Legally binding commitments within those agreements, such as specific targets and timetables, can create the confidence necessary to drive regulation, send clear market signals, and channel investments for a low-carbon future.

Leaving Durban without a mandate to negotiate a comprehensive, ambitious, equitable, and legally binding agreement containing legally binding commitments would risk signaling a loss of confidence in international law as the means by which countries set and perform against mutually-agreed expectations.

Read more posts from Jacob Werksman on legal form in the UNFCCC:

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