Durban at the crossroads

Mid-way through the second week here at COP17 in Durban it is apparent that the international climate regime stands at a crossroads: push ahead with top-down legally binding targets or stick Kyoto in the freezer and pursue, in the meantime, a bottom-up set of common standards in pledging and reviewing mitigation action. At its core, this has come down to a choice of form over substance.

Given that Kyoto has become synonymous with global action on climate change, the idea of now leaving Kyoto hanging without a second commitment period is a reality that many developing countries are finding politically and psychologically very difficult to accept.

And it is not just developing countries who are worried about the impending “Kyoto gap” just over 12 months away.  In a press conference on Tuesday this week, European Commissioner for Climate Action Connie Hedegaard made a strong plea for countries to push for legally binding agreements on the basis that with legally binding targets the EU wants “more ambition, not less ambition”.  And, in an apparent softening of its stance, the EU – with its long-held belief in the Kyoto Protocol as the best way to move forward with global climate change action by all countries – went on to indicate its willingness to sign up to a second Kyoto commitment period – but on the condition that a mandate for a legally binding agreement – and perhaps even just a pathway to a mandate – is achieved here in Durban.

But it is worth questioning the EU's insistence on this top-down legally binding approach.   Is it true that legally binding targets by definition mean a higher level of ambition?  And if Kyoto goes into cryogenic hibernation, does that necessarily mean an end to progress in global action on climate change?

The answer ultimately comes down to whether one believes the current climate negotiations have put form over substance at the expense of progress on the substantive building blocks for a bottom up common standards approach.

While a number of developed countries – including Australia – have indicated their willingness to increase their mitigation targets if a comprehensive global post-2012 treaty is agreed, what is clear from the current political negotiations is that ongoing insistence on form – legally binding, top-down – is seriously risking any likelihood of Parties here reaching agreement on any substantive outcome to formalize guidelines and standards for monitoring, reporting and verification of pledges by developed and developing countries.  While there are many more elements to a “Durban package” operationalising a transparent process for all countries to report on their mitigation actions and be held to account for their actions in the UNFCCC process – building on the Copenhagen and Cancun Accords – is generally viewed as a critical first step in getting the likes of China, India and the United States towards signing up to a comprehensive post-2012 climate regime. 

But it is clear amongst all here in Durban that this will take several more years to achieve.

And so the challenge for Parties as they move into the last two days of negotiations is how to “de-link” the choice on the overall form of post-2012 action from technical decisions on a common standard for pledging and reporting on climate change action.

This is now the challenge that faces the hundreds of Heads of State and Ministers that have flown into Durban over the past few days and who will spend the next 48 hours trying to separate form from substance.

Paul Curnow is a Partner with law firm Baker & McKenzie, specialising in environmental markets