SPECIAL ON CLIMATE CONFERENCE 2011Global Climate Regime
Legal options and challenges
Bangladesh experiences increased number of natural calamities under climate change impact. Photo: Anisur Rahman
International environmental law has come a long way since 1972, through the adoption of the Stockholm Declaration on Human Environment. Twenty years later, climate change appeared as a distinct issue in 1992, when the United Nations Framework Convention on Climate Change (UNFCCC) [the Convention] was adopted. The Convention laid down the basic framework with voluntary commitments of the Parties to stabilise atmospheric concentrations of greenhouse gases, to avoid “dangerous anthropogenic interference” to the climate system. The Parties of the Convention agreed in its first Conference of the Parties [COP-1, 1995, Berlin] to take legally binding commitments realizing an inadequacy of voluntary commitments to reduce greenhouse gases (GHGs). The 'Berlin Mandate' led the way for further negotiation, for legally binding instruments, leading to the adoption of the Kyoto Protocol [the Protocol] at COP-3 in Kyoto, 1997. The Protocol created legally binding targets on GHG emission reductions, particularly, for the developed countries and set an initial time period of 2008-2012, known as the first commitment period along with additional commitment periods. Controversy surrounded, the lack of, any agreed outcomes from COP-15 and Meeting of the Parties (MOP-5). It came as no surprise then that the decision was taken to extend the mandate of two working groups and to complete their work at COP-16, held in 2010. Failure of COP-15 and the undue adoption of the Copenhagen Accord raised serious concerns over multilateralism within the UNFCCC. Later, the Cancun Conference, approving a set of decisions, demonstrated that multilateralism was still alive and can play a role in the climate regime. In addition, the Cancun Decisions have provided a framework on adaptation, technology transfer and financial mechanisms, which needs to be developed at future COPs. The Cancun Decisions extended the mandate of Long-term Cooperative Action (LCA) to continue its work and to be present at COP-17, Durban 2011. It also requested for the LCA to continue discussing legal options. That one of the priorities for the Durban should be to make progress in addressing the legal form for the next phase of the Convention. The Cancun Agreements also extended the work of the Ad-hoc Working Group, Kyoto Protocol. This ensures that there will be no gap between the first and second commitment periods. With this in mind a new period will begin from 1 January 2013. This is why Durban is so crucial. Any amendments to the Protocol must enter into force on or before this date meeting a rigorous process. Yet, in order to continue the Protocol three fourths of the Parties to the Protocol will need to accept the amendments, and ratify these by 3 October 2012. Durban represents the last opportunity for the global community to bridge a gap between the first and second commitment periods. But a legally binding agreement before the expiration of the first commitment period seems unlikely due to lack of political will of the developed countries. Political will particularly from the developed countries is evident towards a new single instrument replacing the Protocol. The Protocol came into force as an unwanted child struggling all the way, through eight years and then again, without complying with its first commitment period. Major polluting countries are arguing for a new one, which would face similar difficulties to take effect. Replacing the Protocol, for many in developing countries represents a mockery for the victims of climate change. It is expected that there will be two outcomes at Durban, yet only time will tell if they will be for better or worse. M. Hafijul Islam Khan is environmental lawyer and legal research fellow, CISDL, Canada.
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