What are the key elements of Durban Decisions/Package?

At Durban, the second commitment period for developed country parties under the Kyoto Protocol was established. Several institutional mechanisms including the Green Climate Fund, Technology mechanism, and the Adaptation Committee which had been agreed at Cancun were operationalised at Durban. The Durban conference also adopted the guidelines for transparency arrangements which will result in the first biennial reports/updates of mitigation actions of developed and developing countries to be furnished in 2014 and the IAR and ICA of such actions to take place in 2015. The Durban Conference also agreed to launch a process under the Durban Platform to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention by 2015 and implement it from 2020.

Did India’s position change between Copenhagen / Cancun and Durban?

India’s position on the negotiating issues is guided by the principles of the Convention. Even while advancing its voluntary efforts in order to demonstrate its adherence to the objectives of the Convention, India’s position remains firmly rooted in these principles.

At Copenhagen, India had agreed to indicate the domestic mitigation goals and also to the transparency arrangements. At Cancun, this was formalized and India went along-with the relevant decisions. At Durban, this was further advanced through an agreement on guidelines for ICA and ICR and India agreed to it.

The new development at Durban consists of launching a process for post 2020 arrangements. While agreeing to this process, India made it clear that the principles of equity and CBDR remained the guiding principles. Last hours of the Durban Conference and the final language on options for the legal form agreed in Durban are clearly indicative of the fact that India’s views on the question of legal form of the outcomes prevailed.

Did India vacillate, i.e. first oppose and later agree to the Durban Platform?

India was never in favour of an outcome that would mandate legally binding emission cuts for developing countries without clarifying the stance of developed countries on their mandatory obligations under a legally binding regime. It was precisely for this reason that India introduced the option of ‘legal outcome’, which EU supported by SIDS wanted to be dropped.

India stuck to its stand and made a counter proposal for inserting an option of ‘agreed outcome with legal force’ which found acceptance by all. This ensured that vital elements of India’s position including the stand on equity and legally binding agreement were not compromised. The legal effect of “legal outcome” and “agreed outcome with legal force” is same.

Did India accept, at Durban, legally binding cuts on its emissions before or after 2020?

At the Durban Conference, the world recognised India for its spirited defense of the interests of developing countries. India insisted that the global regime for climate change must be based on the principles of equity and common but differentiated responsibility. India ensured that developing countries are not bound by any commitments to reduce their emissions and that the objectives of social and economic development and poverty eradication are not compromised in any way, whether upto 2020 or in the post 2020 arrangements that are to be negotiated and finalized by 2015.

What would be the shape of post 2020 Arrangements for Climate Change?

The legal shape of post 2020 arrangements cannot be pre-judged. The arrangement may include a variety of options including aspirational CoP decisions, binding CoP decisions, setting up of institutions and bodies covering various aspects of Bali Action Plan and Cancun Agreements with differing degrees of bindingness under the provisions of domestic and international law under the UNFCCC.

What will be the impact of the Durban decisions on Indian economy, industry and society?

For the timeframe till 2020, our domestic goal has already been announced under the Copenhagen Accord and Cancun agreements. The goal is 20-25{b9cca8aede1995d450ecbb7cabdd9c806c66ba8f7afe5985dcdbcb8cb5055004} reduction of emission intensity of GDP in comparison with 2005 level. This is a voluntary goal and does not need any further revision till 2020. The goal is to be achieved through a sustainable development strategy including promotion of energy efficiency in several sectors of industry, and solar and other forms of renewable energy. This is to be achieved depending on the financial outlays and technology support available from domestic and international sources. There is, therefore, no immediate impact on economy and industry because of Durban decisions.

The Durban decisions deal basically with the nature of arrangements after 2020. As the outcomes of Durban Platform have to be reached under the Convention and the legal form of such outcomes are yet to be negotiated and agreed, there are no legally mandated emissions reduction obligations for Indian industry. India’s goals for post 2020 period will be decided in due course by the Central Government after consulting various stakeholders, including the civil society and the industry.

What does India want from a legally binding agreement?

India expects a legally binding agreement to deliver on all four aspects of the Bali Action Plan in an equally binding manner – mitigation, adaptation, finance and technology. The agreement should ensure ambitious outcomes on all these issues and not only on mitigation.

Mitigation is, no doubt, a key concern because the obligation of both Kyoto and Non- Kyoto Parties has to be captured in the Agreement. But, a balanced outcome must be anchored in the principles of the Convention, particularly the principles of equity and CBDR, and should ensure that the developed country Parties provide finance and technology to enable ambitious mitigation and adaptation actions to be taken by developing countries.

A legally binding agreement can include a mix of CoP decisions as well as protocols. Some of the decisions could be aspirational, while some of them could be binding. There could be protocols or other implementing agreements that would facilitate creation of bodies and institutions that would be needed to implement the decisions with differing degrees of binding-ness.

What did India lose and gain at Durban?

The biggest gain at Durban was the establishment of the second commitment period of developed country parties under the Kyoto Protocol. Besides, several institutional mechanisms including the Green Climate Fund, Technology Mechanism, and Adaptation Committee which had been agreed at Cancun were operationalised at Durban. The Durban conference also adopted the guidelines for transparency arrangements which will result in the first biennial reports/updates of mitigation actions of developed and developing countries to be furnished in 2014 and the IAR and ICA of such actions to take place in 2015.

India was able to ensure that emissions and economic growth of developing countries is not inhibited by any legal constraint or limits until 2020 or thereafter. While there was no loss as such at Durban, the challenge in future is to ensure that the principle of equity and CBDR provided under the Convention remain the bedrock of the post 2020 arrangements.

What does legally binding agreement mean for India? Where does India stand on this matter in relation to the decision on Durban Platform?

The Durban platform decision states that the negotiations on post 2020 arrangements should result in a protocol or legal instrument or agreed outcome with legal force. A protocol or legal instrument refers to an instrument or agreement that has to be ratified by the Parties. Kyoto Protocol is one such agreement. However, agreed outcomes with legal force need not have the legal form of a protocol or a legal instrument. “Agreed outcome with legal force” gives flexibility to the developing countries to choose an appropriate form of outcomes that protects their interests.

For the legal form to be determined there has to be, first, an agreement on substance. Second, the agreements can have legal force even without the legal form of a protocol or instrument. The arrangements following the negotiations can be implemented either under the international law/agreement or under domestic and national legal provisions.

Moreover, a Legally Binding Agreement may include a mix of CoP decisions as well as protocols. Some of the decisions could be aspirational, while some of them could be binding. There could be protocols or other implementing agreements that would facilitate creation of bodies and institutions that would be needed to implement the decisions with differing degrees of binding-ness. A final decision on this will depend on the nature of the agreements reached following the negotiations. Hence the form cannot be prejudged at the start of the negotiations, the decision on this should come towards the end of the process.