Lavanya Rajamani is a Professor at the Centre for Policy Research, New Delhi, India. She was previously University Lecturer in Environmental Law, University of Cambridge and Fellow & Director of Studies in Law at Queen’s College, Cambridge. She is co-editor of ‘Promoting Compliance in an Evolving Climate Regime’ (CUP, 2011), and ‘Climate Change Liability: Transnational Law and Practice’ (CUP, 2011). She has worked as a consultant to the UN Framework Convention on Climate Change (UNFCCC) Secretariat, the Danish Ministry of Climate Change and Energy, the UNDP, the World Bank, the Alliance of Small Island States, and the International Institute of Sustainable Development. She has worked on and followed the climate negotiations since 1997, in different capacities, including as a negotiator for the Alliance of Small Island States during the negotiations for the Marrakech Accords, and as a legal advisor to the Chair of the Ad Hoc Working Group on Long term Cooperative Action under the FCCC – the inter-governmental group tasked with arriving at an agreed outcome on climate change post-2012 – in the lead up to the Copenhagen Climate Conference, 2009.
Ever since the Bali Action Plan, 2007, launched the current phase of negotiations under the Framework Convention on Climate Change (FCCC), parties have been dithering over the legal form that the “agreed outcome” to these negotiations should take. The options range from protocols and amendments that are legally binding and can deliver the benefits of consistent application, certainty, predictability and accountability, to soft law options such as decisions taken by the Conference of Parties (COP), which, while operationally significant, are not, save in the exception, legally binding. This divisive issue has taken centre-stage at the ongoing Durban Climate Change Conference.
Many countries, including the host country, South Africa (part of the BASIC group of Brazil, South Africa, India and China) have coalesced in favour 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 Alliance of Small Island States and other vulnerable countries on the frontlines of climate impact believe that anything short of a legally binding instrument would be an affront to their grave existential crisis. The EU has indicated that they will 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. This agreement, applicable to all, is intended to take effect post-2020.
Brazil, China and India argue that extending Kyoto 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 of 2°C slated for 2015. The United States, nervous about the gathering momentum in favour of a Durban mandate, has indicated 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. In this they are joined by the Australia, Japan, New Zealand, and others. Needless to say, the BASIC countries will find such symmetry 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 countries, may have little to fear and much to gain from a legally binding instrument. Read the rest of this entry…