The Durban climate talks are over, and many are celebrating. After repeatedly reaching the brink of collapse, the summit produced agreements on several counts. The Associated Press reported that it approved a “landmark deal” that was “meant to set a new course for the global fight against climate change for the coming decades”. Christina Figueres, head of the system that oversees the talks, heralded the arrival of a “remarkable new phase in [the] climate regime”.
Most of the agreed texts fleshed out matters left unfinished last year in Cancun: rules for a new climate fund, the structure of an international network of technology centers, a scheme for avoiding deforestation, and parameters for a system meant to increase the transparency of countries’ emissions-cutting actions. It is this part that will have the greatest substantive impact and is worthy of celebration. A climate fund with good rules, for example, is more likely to attract money and to use it well, while a sound system for auditing countries’ climate efforts will make it easier to create a virtuous cycle of action.
But it was not debate on these matters that took the talks to the edge, and it was not resolution of them that inspired the most applause. Instead, it was an agreement to initiate “a process to develop a protocol, another legal instrument or an outcome with legal force under the Convention applicable to all Parties” that has led commentators to conclude that there will be a new treaty that will legally bind all countries to reduce emissions. Alas, that conclusion is not warranted.
The process the yielded this language was hard-fought. Developing countries had insisted that developed ones take new commitments to cut emissions under the Kyoto Protocol. Most rejected that out of hand. Europe, though, accepted in principle, but with a condition: the entire conference would need to agree to seek a legally binding deal covering all emitters by 2015, with the aim of bringing that deal into force by 2020. This ultimate demand – rejected by India and China, and met without enthusiasm by the United States – was what nearly brought the talks down.
The precise dynamics that unfolded in the final days are still unclear. In the end, though, the talks came down to a simple choice. Europe insisted on language that would commit all countries “to launch a process to develop a protocol or another legal instrument under the Convention applicable to all Parties”. India strenuously insisted that “a legal outcome” be included as a third option. It is not clear exactly where China or United States, which were both fine with including “legal option” but otherwise largely sat out the final public fight, would have drawn the line if forced. Everyone ultimately compromised: an “outcome with legal force”, rather than a “legal outcome”, was added as the third option.
It is difficult to avoid concluding that the Europeans ultimately blinked, though you wouldn’t get that from their spin or from the media coverage. The New York Times, adopting a similar interpretation to most other outlets, reported that the deal foresees “a future treaty that would require all countries to reduce emissions that contribute to global warming”. Alas, there’s nothing much like that in the text.
The first problem is with the word “treaty”, which appears nowhere in the agreement. Indeed some will insist that a mere set of formal decisions by the parties – like, say, the Cancun Agreements of last year – ought to qualify as an “outcome with legal force”; they may not have as much legal force as some would like, but surely one can argue that they have some. Perhaps this traps countries like China and India a bit: they can argue out of seeking a new instrument only by asserting that COP decisions have some legal weight. But one thing is clear: there is no commitment to seek a new treaty or protocol.
It’s also worth noting that, contrary to most media reports, the text’s requirement for “legal force” is broad, and does not necessarily need to apply to emissions cuts. It could, for example, be read to require that transparency provisions, rather than emissions cuts, have legal force. I would not be surprised to see the United States push such an approach.
Similarly, just because the text says that the new agreement must apply “to all Parties”, it needn’t have the same effect on all of them. The Kyoto Protocol, after all, also applied to all parties, just in very different ways. To be certain, this is a legalistic interpretation, and any country that tries to press it will probably suffer in the court of public opinion. In particular, the United States and Europe will point to the lack of any language on “common but differentiated responsibilities”, “equity”, or anything explicitly distinguishing developed and developing countries in the text, in order to claim that all must be bound similarly. But arguing for differentiation remains an option nonetheless, and it is one that developing countries will almost certainly avail themselves of. Indeed, after Copenhagen, the United States and Europe also claimed that the distinction between developed and developing countries had been abolished. That does not seem to have stuck.
Was all this vague language an intentional fudge? Almost certainly. But, given that Europe was the one holding out for something strong and specific on the legal front, it’s the one that has conceded the most here. Some will say that I’m focusing on the letter of the law rather than the spirit of the text. But the spirit of the text is not universal: Europe may believe that its true intent is to usher in a legally binding treaty with emissions cuts for all, but India surely doesn’t share that view. A month from now, when heads cool, the United States will be able to point to the detailed technical elaboration of the Cancun Agreements as its accomplishment, while India and China will be able to cite the unambiguous extension of the Kyoto Protocol. Europe, in contrast, will have to fight over the interpretation of “outcome with legal force” and “applicable to all Parties” to preserve its supposed victory.
It’s also worth taking a step back to look at the broader contours of the talks. It is distressing to see how much attention has become devoted to form rather than function. The fact that people are so are fixated on the future of Kyoto and the potential for a new legally binding treaty – neither of which, depending on its specific content, need have any impact on emissions – is extraordinary. It is particularly worrying that so many parties were willing in Durban to risk their real substantive progress because they could not agree on what are, in practice, largely symbolic matters. Congratulations are in order to those diplomats who found a face saving way for everyone to back down so that they could consolidate important incremental advances that they had made elsewhere. But the Durban outcome does not auger a “remarkable new phase” in the climate talks. Its most celebrated elements largely mask dysfunction as usual.