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OPINION: ‘Legal form’ and the future of the Kyoto Protocol – can Durban deliver?


Lavanya Rajamani, Professor (International Law), Centre for Policy Research, New Delhi

There is muted hope and frustration in equal measure in the lead-up to CoP-17/CMP-7 in Durban. Hope that the Durban conference will resolve the vexed question of ‘legal form’ of the Bali ‘agreed outcome’ and provide Kyoto with a new lease of life, and frustration that the politics as they are emerging may make this unachievable. This divisive issue is slated to take centre stage at the Durban conference.

A majority of countries across the developed – developing country divide have coalesced in favor of a legally-binding instrument to crystallise mitigation and other commitments that will chart the world through to a 2°C or even 1.5°C world. The EU, among others, has indicated that they are willing to offer the Kyoto Protocol a lifeline to ensure its survival for a (transitional) commitment period conditional on the adoption at Durban of a deadline-driven roadmap towards a ‘global and comprehensive legally-binding agreement’ under the FCCC.

Brazil, China and India, among others, have challenged the link between Kyoto’s survival and a roadmap under the FCCC. Extending Kyoto in their view is a legal obligation not a bargaining tool to wrench further concessions from developing countries. These countries are, if at all, only willing to consider a mandate for a new legally-binding instrument after the completion of the review of the long-term global goal slated for 2015.  The United States, nervous about the gathering momentum in favor of a Durban mandate, has in any case made it clear that any new legally-binding instrument, if and when it becomes necessary, must incorporate symmetrical mitigation commitments, at least in form, for all significant emitters. Needless to say the BASIC countries will find such symmetry in the legal character of mitigation commitments unpalatable.

Whatever the merits of these positions, it is worth stepping back from the ever-dire politics of the blame game, and exploring what legally-binding instruments do that CoP decisions cannot; why, if at all, we need such an instrument; and why developing states may have little to fear and indeed much to gain from a legally-binding instrument. Legally-binding instruments can, unlike CoP decisions, create substantive new obligations for Parties. If existing legal instruments and obligations – not just on mitigation but also on financing, technology and adaptation – are insufficient (and they are) to meet the objective of the FCCC, it would appear self-evident that new obligations and therefore a new legally-binding instrument is necessary. Such an instrument does not have to bite developing countries quite as hard as it does others. Provisions, even within legally binding instruments, have differing levels of rigour and precision, and different degrees, therefore, of ‘teeth.’

The FCCC and Kyoto Protocol are prime examples. Parties can negotiate a finely-balanced set of soft and hard obligations based on ‘equitable access to sustainable development’ in relation to, for instance, the architecture of the instrument, the range and character of obligations within it, the degree of flexibility it allows different Parties, and the nature and extent of differentiation it contains. This will result in an instrument that, while creating substantive new obligations across the pillars of the Bali Action Plan intended to set the world on a path to 2°C, will also offer the benefit of flexibility to those that need it.  Indeed, such an instrument by creating concrete enforceable obligations in relation to finance, technology, and adaptation, could deliver the certainty, predictability and accountability developing countries have been seeking on assistance obligations. This instrument could also resolve issues India has placed on the Durban agenda seeking to operationalise ‘equitable access to sustainable development’ and spurn unilateral trade measures.

In the ultimate analysis, a legally-binding instrument is a signal of seriousness. Kyoto needs to be treated with more seriousness by (at least some) Annex B Parties than it has thus far. And, the growing demand for a new legally-binding instrument to advance the climate regime needs to be treated with due seriousness by Brazil, India and China. The Durban conference offers an opportunity to signal seriousness on both fronts. If it is held hostage to the politics of the blame game and reflects neither, faith in the multilateral climate process will again, and perhaps justifiably so, be at an ebb.

Wind turbine farm. Tunisia. Photo: © Dana Smillie / World Bank

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