From Copenhagen to Cancún and Beyond: To Kyoto or Not To Kyoto?

The multilateral process was kept alive in Cancún in December, but what of the agreements that were reached? Do they really constitute a new beginning that will lead to the actual adoption of a comprehensive and ambitious legally binding post-2012 global climate regime at the next conference in Durban at the end of 2011? Or will they instead mark the beginning of the end of a multilateral framework firmly grounded in international law, and eventually result in its replacement by a set of essentially voluntary arrangements based on a pledge-and-review approach?

Nine years ago the European Union was instrumental in brokering the Bonn-Marrakesh agreements that paved the way for the entry into force of the Kyoto Protocol. EU leadership continues to be seen as crucial to take forward the multilateral process and will again be tested this year in the run-up to Durban, where the most contentious issues that could not be solved in Mexico – including the fate of the Kyoto Protocol beyond the end of its first commitment period in 2012 and the legal form of the necessary complementary provisions – will have to be decided. As Commissioner Hedegaard acknowledged in her speech to the European Parliament a few days after Cancún, ‘The road to South Africa is not going to be an easy one’. However, her reading of the Cancún Agreements as actually ‘including in a binding UN agreement…all the elements of the Copenhagen Accord’ is a questionable one.

The Agreements are not legally binding. As the Commissioner herself admitted in the very same speech, they merely ‘keep open the discussion about the Kyoto Protocol and a future legal outcome’. Indeed, in her own assessment: ‘If we had not had the prospect of having a second commitment period, it is very likely that the [UNFCCC] process would have been dead by now’. In Durban, the Protocol’s second commitment period will have to be more than a distant prospect if the process is to retain its renewed momentum and credibility. And the EU itself under the Hungarian and Polish Presidencies will have to go beyond ritually repeating the ambiguous wording of Council conclusions affirming its ‘willingness to consider’ subscribing to Kyoto commitments beyond 2012.

This will require Europe to overcome lingering but significant internal divisions and to continue to speak with one voice, which has not always been easy to achieve in the past. On the one hand this calls for a more intense focus on resolving internal political differences rather than obfuscating them, recognising that these have both an economic and political dimension. On the other hand it underlines the need for a form of EU representation that is both effective externally and perceived as legitimate and transparent internally.

In Cancún the Commission had the leading role in speaking on behalf of the EU during formal and informal meetings throughout the final high-level segment of the conference, even though it has never sought, much less received, a formal negotiating mandate from the Council for these climate talks. The public role of the self-effacing Belgian Presidency, as incarnated by Flemish environment minister Joke Schauvliege, was limited to delivering the second half of a three-minute official EU statement to the plenary, following Hedegaard, much to the concern of some of the Member States most wary of European federalism. The Commission can bring experience, expertise and continuity to EU representation, but if it assertively seeks to sidetrack the Council Presidency, it is playing with fire. Its strategy may well backfire if Member States fear losing their collective ultimate control over the EU’s negotiating position, which has always been the implicit condition on which they have allowed the Union to speak with a single voice in the multilateral climate negotiations.

This article is an excerpt from the forthcoming IEEP newsletter due out next week.