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The eighteenth United Nations Climate Change Conference took place in Doha, Qatar, from 26 November to 8 December 2012 – the first time that the Conference was held in the Middle East. There is some irony in the choice of location for the reason that Doha is the world’s largest per capita emitter of greenhouse gas. As is usual the Conference was a complex affair, with a plethora of meetings occurring simultaneously viz.: · The eighteenth session of the Conference of the Parties (COP 18) to the United Nations Framework Convention on Climate Change (UNFCCC). · The eighth session of the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol (CMP 8). · The thirty-seventh sessions of the Subsidiary Body for Scientific and Technological Advice (SBSTA 37) and the Subsidiary Body for Implementation (SBI 37). · The second part of the seventeenth session of the Ad hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP 17). · The second part of the fifteenth session of the Ad hoc Working Group on Longterm Cooperative Action under the UNFCCC (AWG-LCA 15). · The second part of the Ad hoc Working Group on the Durban Platform for Enhanced Action (ADP 1). Thankfully some of this complexity falls away after COP18 with the completion and closure of the work of the two AWGs. Since 2005 the climate change negotiations have been undertaken on two tracks (each represented by the AWGs). This torturous dual approach was prompted by the USA’s walk-out of COP11, held in Montreal, Canada, and refusal to continue negotiations under the hitherto single track, including discussions under the Kyoto Protocol to which the USA will not accede. The two track approach was devised as the mechanism to keep the USA at the table, i.e., by separating the negotiations into a Convention track, in which the USA would participate; and a Kyoto Protocol track, which (by its own choice) would exclude the USA. There is further irony in this US position for the reason that, in the mid-1990s, the Clinton administration was a leader in the negotiations that established the Kyoto framework while, at the moment in history when US ratification of Kyoto may have resulted in a very different geopolitical climate change landscape from the current status quo, the Bush administration took office and flatly refused to continue in the manner of its predecessor. The following table summarises the most recent negotiation cycles and look forward to what can be expected in the immediate aftermath of COP18: Negotiation CycleCulmination of the CycleOutcome of the Cycle Up to December 2007COP13, Bali, Indonesia, December 2007Bali Action Plan: formal establishment of the AWG-LCA (to join the pre-existing AWG-KP thus commencing the two-track process), and a two-year timeframeto conclude an “agreed outcome” to the climate change negotiations. The Bali Action Plan was hailed as a “game-changer” in the negotiations and was universally agreed upon, including by the US. The outcome is more generally referred to as the Bali Roadmap. 2008-2009COP15, Copenhagen, Denmark, December 2009Copenhagen Accords: not the outcome that many had anticipated, rather a high-level political agreement that shaped the direction of (then) future negotiations but also tended to undermine the integrity of the Bali Action Plan. 2010 – 2012COP16, Cancun, Mexico, December 2010Cancun Agreements: putting flesh on the skeleton of the Copenhagen Accord. COP17, Durban, South African, December 2011Durban Platform for Enhanced Action: establishes a timeframe for concluding negotiations on the future climate change regime and a framework for the regime which further dilutes the Bali Action Plan. The legal form of the regime is described as “a protocol, another legal instrument oran agreed outcome with legal force under the Convention applicable to all Parties”, and negotiations on the regime must be concluded by the end of 2015 (COP21) and made ready for implementation by 2020. These timeframes completely ignore the imperatives of climate change science which indicates that this decade marks virtually the last chance that humanity has to take action to avert catastrophic climate change. In essence the Durban outcome is an agreement to postpone taking action until the end of this most important decade. COP18, Doha, Qatar, December 2012Doha Gateway: closure of the two-track processand transition from the Bali Roadmap to the Durban Platform Formal outcomes of the Doha Climate Change Conference While, in 2007, the Bali Action Plan was greeted with great enthusiasm and seen as a great leap forward for a negotiation process that, up to that date, had been mired in stasis, the progress of the discussions since then has been, at best, patchy. One South African negotiator described the Doha experience as being akin to a “slow, tectonic shift” and noted that the agreed text features “vague words and fuzzy numbers” (Harald Winkler, Vague words and fuzzy numbers in Doha climate talks, http://www.ercblogs.co.za/vague-words-and-fuzzy-numbers-in-doha-climate-talks/). The following is a cherry-picked list of Doha outcomes: · Kyoto Protocol Second Commitment Period: a second Kyoto commitment period has been agreed, commencing at the beginning of 2013 and ending in December 2020. Effectively, therefore, Kyoto continues but in a more limited form. This limitation arises from the fact that a number of developed country Parties have indicated that they will not sign-up to the second period, e.g., Japan, Russian Federation and Canada, and the emissions reducing pledges of those developed countries that will sign-up are more diluted than for the first period (although the pledges will be reviewed in 2014). The flexible mechanism, including the Clean Development Mechanism will continue to operate. · Timeframe for a future global climate change agreement, including providing for increasing ambition to respond to climate change: the agreement is to work toward a universal climate change agreement in accordance with the timeframe established by the Durban Platform, and to find ways to scale up efforts before 2020, beyond the existing emissions reducing pledges with a view to curbing greenhouse gas emissions to ensure less than a 2 degrees Celsius global average temperature change. To put these words in context, civil society has expressed the view (for some years) that the negotiations are becoming increasing irrelevant to the geophysical reality that is facing the planet. In short, notwithstanding the text agreed to under the UN auspices, the world is already set to exceed the 2 degrees Celsius hurdle during the course of this century, the consequence of which will be catastrophic global environmental change. The issue, say the NGOs, is no longer whether we can avert a crisis but what mechanisms are needed to respond to the crisis. As it happens, one outcome of Doha seems to concede this point (see belowon “Loss and Damage”). · Climate change finance: developed countries confirmed their commitment to provide long-term and additional climate finance support to developing countries, with a view to mobilizing 100 billion USD both for adaptation and mitigation by 2020 and to ensure contributions between 2013-15 remain, at least, at the average annual level for such contributions during the 2010-2012 “fast-start finance” period. The context for this wording is that the promised level of “fast-start finance”, namely 30 billion USD between 2010 and 2012 was never achieved by developed countries. Given this reality and the continuing economic crisis in many developed economies, it remains to be seen whether this repetition of the financial commitment originally made in the Copenhagen Accord will, inn fact, be realised. Loss and Damage Principles of international environmental law emerge slowly and as a result of a number of mechanisms, including state practice and the utilisation or articulation of a principle in UN conventions. The UNFCCC contains the first articulation of the notion of “common but differentiated” responsibility of country Parties to respond to climate change. Essentially, this is the notion that developed country Parties bear a greater responsibility than to developing country Parties, due to the historic impact on the climate system of developed countries, e.g., through two centuries of emissions of greenhouse gas. Doha might mark the arrival of a new principle of international environmental law in the form of the COP decision on loss and damage which “…recognises the important and fundamental role of the Convention in addressing loss and damage associated with climate change impacts, especially in developing countries that are particularly vulnerable to the adverse effects of climate change, including by promoting leadership, collaboration and cooperation, at the national, regional and international levels and for a broad range of sectors and ecosystems, in order to enable coherent and synergistic approaches to address such loss and damage.” One commentator is of the view that the Decision foreshadows a time when ‘ “developing nations that are particularly vulnerable to the adverse effects of climate change” might have a right to redress from major polluting nations for any “loss and damage” ’ (Fred Pearce, Should Polluting nations be liable for climate damages, Yale 360, http://e360.yale.edu/content/print.msp?id=2609). Whether this will be the case is currently an open question, but the existence of a formal UNFCCC Decision on loss and damage is surely (at least) tacit acknowledgement that developing country Parties will suffer loss and damage as a result of climate change caused, for the most part, by the actions of developed country Parties. The development of jurisprudence on this basis will be especially interesting to follow. Andrew Gilder is Senior Associate at Edward Nathan Sonnenbergs (www.ens.co.za ) tasked with driving an Africa-wide climate change and carbon markets practice from within the Environmental Team. This article should not be regarded as legal advice. For queries please contact Andrew on: [email protected]