Interpreting the Durban Climate Change Conference Outcome

So how should the outcome of the Durban conference, the UN’s latest climate change confab, be interpreted?  Looking at it strategically, adopting by assumption the standpoint of wanting to see maximum binding international legal enforcement, how did things fare? I see three general interpretations on the table: optimists, pessimists, and mitigators.  And add a fourth, skeptics – skeptical in this instance on both the negotiations and the underlying issue, so not fitting into the starting assumption.

Optimists: Daniel Bodansky (a preeminent international environmental law scholar who is a leading theorist of ways in which international climate change negotiations can overcome what might otherwise be seen as daunting collective action problems) offers the optimist position at the international law blog Opinio Juris.  He wrote a series of posts from Durban for OJ, which are well worth reading, and his latest post sums up the glass-half-full optimist view:

As compared to the expectations going in, the outcome was more than I think most people thought possible.  In a pre-Durban paper entitled “W[h]ither the Kyoto Protocol,” I identified three scenarios: (1) business-as-usual, with modest progress in developing the Copenhagen/Cancun framework and no political breakthroughs; (2) agreement to a “political” (not legally-binding) second commitment period under the Kyoto Protocol; and (3) agreement to a Kyoto Protocol amendment establishing a second commitment period, combined with a mandate for a new negotiating process to develop a legally-binding agreement addressing the emissions of the other major economies.  Many thought that (1) was the default option, (2) represented the best-case scenario, and (3) was politically unrealistic.  But the Durban outcome is in fact closest to (3):

  • It wrapped up much of the remaining work to elaborate the Copenhagen/Cancun process, by adopting the governing instrument of the new Green Climate Fund and a transparency rules for both developed and developing countries pledges.
  • It agreed to extend the Kyoto Protocol by another 5-8 years.  Although the emissions targets for Kyoto’s second commitment period still need to be worked out, and the formal amendment won’t be adopted until next year, the basic political decision to extend the Protocol was made in Durban.
  • It agreed to launch a new negotiating process to develop a “protocol, another legal instrument, or agreed outcome with legal force,” addressing the post-2020 period  and “applicable to all Parties.”

The Durban outcome seemed unlikely because there was little indication that China and India would agree to negotiate a new agreement to limit their emissions.  Without agreement by China and India, the United States had said that it would not agree to a new round of negotiations.  And without agreement by the United States, China, and India, the European Union would not agree to a second commitment period under the Kyoto Protocol.  What allowed the Durban outcome was a careful compromise that gave BASIC countries, on one side, a 2020 start date for the new agreement and some ambiguity about its legal character (about which more below), and gave the EU, small island states and least-developed states, on the other side, early start and end dates for the negotiations (the negotiations will begin next year and conclude in 2015)  and language that the outcome of the new negotiations will have “legal force.”  Interestingly, the United States apparently played something of an intermediary role, since it had some flexibility about the issues of both dates and legal form.  In the end game of Durban, India was unwilling to accept a mandate to negotiate  a “protocol or another legal instrument,” and preferred the formulation “legal outcome.”  The United States suggested “outcome with legal force,” India added “agreed,” and the EU said ok.  Thus the deal was done.

Pessimists:  Michael Levi, a Council on Foreign Relations senior fellow, offers a different and far more pessimistic assessment.  He is particularly concerned to counter the fairly upbeat stories in the Western press on what had been accomplished, and goes to the nitty-gritty of the actual language of the Durban agreement – which is to say, what was actually agreed and not simply skepticism that whatever was agreed, down the road parties would nullify it through defection.

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”.

Nonsense.

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.

I myself have substantial doubts, given the state of public finances in the developed West, that the climate fund will work out as planned or as Levi hopes (Levi is no fool, so I don’t mean to suggest that he thinks it will actually work as advertised).  I myself view it as a sort of “stranded capital” or legacy of an earlier period in which, to use the melancholy phrase in Spain, “we used to be rich” – cuando eramos ricos.  This is not just a problem of broke countries who promise but don’t actually pay up when confronted with the problem of paying public pensions at home or facing riots. (Or, not to put too fine a point on it, Western countries borrowing money in Asian markets at substantial interest to contribute to global funds.)  It is, more broadly and over the long-term, the problem of conjoining three things:

  • Climate change advocates and their tendency to treat their issue as though, from the standpoint of either the UN or the international development industry, it were the only thing now or ever in the history of the world.
  • The UN and its history of identifying serial “It-Girls” that allow the UN to engage in massive calls for transfers from rich world to poor world, run through the UN rent-seekers.
  • The international development industry and its desire to find new ways to justify big chunks of aid money.

Seen from the standpoint of the institutional UN and the international aid industry, in other words, rather than from a “this issue is unique” climate advocacy view, the central point of all these things is the climate fund and any other mechanism by which rich countries can be pressured, legally, morally, or politically, to transfer funds, through the rent-seeking conduits.  Which is to say, from the standpoint of the UN and the aid industry, there is nothing “unique” about this issue at all.  From a development standpoint, it was preceded by the Millennium Development Goals, by the demands for .7% GDP development assistance from rich countries, and more stretching back many decades practically to the founding of the UN.

These serial initiatives are not unique, because they all feature a compelling narrative that justifies substantial fiscal transfers via rent-seeking international actors and often new mechanisms of global governance to administer the fiscal transfer.  They also have another particular feature – when they don’t work or run out of moral imperative, then the UN leaves the initiative stranded and looks for something else.  The new “It-Girl.”

But, note to climate advocates: the UN never actually stops doing something or ends it, because one never knows how much residual value it might still accumulate and because there is always some bureaucrat to staff it.  But it becomes stranded capital; Cf. Jeffrey Sachs’ Millennium Development Goals.  Will the MDGs ever truly go away?  Does anyone care anymore, really?  Now ask yourself what makes climate change any different; maybe this one is really different, but as someone who studies not climate but the institutional UN, it doesn’t look that way to me.

Point of this digression being that although I share Levi’s close and skeptical analysis of the Durban text that follows next in his post, I am also highly skeptical of the fate of the climate change fund.  But note this sample of Levi’s analysis of the celebrated terms of the Durban language:

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.

Mitigators: Bjorn Lomborg sits somewhere in-between all of this.  Writing in the Wall Street Journal (behind the pay wall, but this link might work):

The Durban pit-stop in the endless array of climate summits has just ended, and predictably it reaffirmed the United Nations’ strong belief that the most important response to global warming is to secure a strong deal to cut carbon emissions.  What is almost universally ignored, however, is that if we want to help real people overcome real problems we need to focus first on adaptation.

The Durban agreement is being hailed as a diplomatic victory. Yet it essentially concedes defeat, leaving any hard decisions to the far end of the decade when other politicians will have to deal with it. For nearly 20 years, the international community has tried to negotiate commitments to carbon cuts, with almost nothing to show for it.  Even most rich countries don’t want to cut fossil fuels, because the alternatives are considerably more expensive. China, India and other emerging economies certainly do not want to, because putting the brakes on growth means consigning millions to poverty.

But even if such intractable issues could be magically resolved, any deal would have a negligible impact on climate. Even if we were to cut emissions by 50% below 1990-levels by 2050—an extremely unrealistic scenario—the difference in temperature would be less than 0.2 degrees Fahrenheit in 2050.

Let me freely reconstruct his premises a bit; they seem to me four-fold:

  • First, the Durban outcome was essentially failure on any collective legal action on which one could reasonably rely, save perhaps something in the climate fund.
  • Second, it would be imprudent to think that even legally binding outcomes would be adhered to as written, as a basis for conducting future policy; the collective action problems are too daunting and defection too tempting.
  • Third, even the kinds of cuts contemplated in the best case scenario would have little impact on the climate change effects that are most likely to occur soonest; trying to prevent the most important effects on actual human beings by curtailing carbon at the front end is not just a political and economic non-starter, it is inefficient if the goal is to address the actual human harms.
  • Fourth, therefore, the best approach is to seek ways of mitigating the actual damage likely to be caused, essentially at the back end, and seek better technological solutions over the long run.

On this view, the climate change fund could play an important “mitigation” role.  But that is only so long as it is aimed at particular, actual damage in the real world – rather than being how it seems to have been contemplated by the UN and poor countries, just another in the long series of arguments for large scale transfers from rich to poor, justified by reference to climate arguments, but really merely the latest in a long series of never ending reasons for the rich world to send more money.

Skeptics: Skeptical for these purposes means someone who is skeptical about the political-legal outcomes but also about the underlying issue.  So it is worth reading Reason’s Ronald Bailey, who was also at Durban; here is his latest short blog post.  Most interesting was the comment about the climate change fund:

The climate negotiators also agreed to launch the Green Climate Fund which will redistribute aid from rich country taxpayers to poor country governments with the goal of helping poor countries cope with climate change. At the Copenhagen and Cancun climate conferences, rich countries promised to suppy $100 billion in climate aid annually by 2020. However, how much of the $100 billion would flow through the Green Climate Fund is still not decided and how the Fund will be financed is also not decided.

The idea that rich countries will be ponying up $100 billion annually by 2020 seems to me the triumph of hope over experience, even if one assumes it were a good idea.  Which is to say (again, reading this as not about climate but about international organization rent-seeking and international development income transfers) recall that the Millennium Development Goals, when proclaimed back in 2000, were supposed to be funded to [IIRC; am not looking it up but this is ballpark] around $120 billion annually.  Substitution effects?  Does this sound quite so much like “climate change” anymore, or instead another grandiose UN development income transfer scheme?

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