THE COP SERIES

Nikhil Bramdaw - South Africa 21 December 2011

The ‘Durban Platform for Enhanced Action’, designed at the 17th Congress of the Parties (COP17) on climate change in South Africa, has been met with mixed responses. As with most sensitive outcomes, some stakeholders believe that the commitments do not go far enough. The notion of a ‘lack of ambition’ recurred frequently while others feel that negotiators managed to strike a suitable balance between often antagonistic positions. Jointly led by South Africa and the EU, some of the negotiated outcomes reached include: an agreement on a process to develop a treaty on emissions reduction which will commence in 2015. The legally binding treaty is scheduled to come into effect in 2020; a commitment to develop the mechanics of the Copenhagen Green Climate Fund, an objective of which is to address mitigation and adaptation initiatives in developing countries. It is estimated that US$100 billion will flow from developed to developing countries through this mechanism annually; achieving agreement relating to the second phase of the Kyoto Protocol, the first phase of which ends in 2012. The second phase will last either five or eight years from 2013. The Protocol is also significant in that it moves away from an older convention encouraging countries to reduce emissions to committing them to do so… Read More…

Moving targets

A key sticking point in discussions turned on whether or not developing nations need to be bound to firm emission reduction targets. It was finally agreed that they should, after much criticism by environmental activist groups. This development also represents a significant move away from the Kyoto agreement, which recognised “common but differentiated responsibilities and respective capabilities”. In effect, the wording encouraged the developing world to reduce emissions while holding the developed world to targets. Undoubtedly, the cut and thrust of the Durban negotiations make for serious reading. There are, however, some broader implications arising out of the Durban Platform that need to be carefully considered. This could enhance competitive advantage, not just in climate change mitigation and adaptation, but broader enterprise preparedness as well. A key consideration here is the legal weight of the final decisions emerging from the various structures established or re-mandated at COP17. As commitments inevitably devolve from the level of the state to the private sector, reporting and compliance for instance, within a legal framework on climate change will assume greater importance. The same can be said about a number of other commercial activities and also raises questions around accountability and the agencies to which commercial entities can be held accountable.

Legal uncertainty

In some instances, the Durban Platform is ambiguous on the legal implications of its guidelines; in others, it is silent. Some of the ambiguity, it seems, has been deliberately built in to accommodate diverse positions emerging at COP17 and previous deliberations. Where it has been silent, there is likelihood that it has been left so in order for the mandated structures to develop and refine legal ramifications as part of their future deliberations. While some of this can be dismissed as mere jurisprudential jousting (there is, for example, debate over whether a COP can actually adopt decisions which are legally binding), the implication for business is clear: follow the developments closely. With regulatory and legislative uncertainty around climate change in many domestic markets, the need to read legal developments and their effects becomes imperative. It is clear, also, that regulatory and legal certainties are insufficient in themselves to ensure business success. Increasingly sophisticated consumers, environmental groups and activist movements are compelling business to remain a step ahead of developments to retain existing market share. Compliance, therefore, becomes only one facet of winning consumer confidence.

Policy partnerships

On a more positive note, decisions such as those emerging from COP17 create an enabling milieu for greater public-private cooperation. While a number of specific case studies were presented in Durban, the principle of jointly addressing needs ranging from energy to agriculture and transport to waste management enjoys increased relevance in financially straitened times. Indeed, the downturn has had implications for private-public partnerships (PPPs). Where traditionally the private sector has been seen as a source of expertise with the state providing funding for projects, the playing fields have changed somewhat as climate change has emerged as an urgent global priority.  Acting in concert, each sector can contribute to an area that has been neglected in traditional PPP modelling: policy formulation. As COP17 and previous such gatherings have proved, there is no one size fits all solution to the problems posed by climate change. There is, however, an opportunity for the public and private sectors to work in greater harmony in developing domestic climate mitigation and adaptation policies, aspects of which can be shared as exemplary at global fora on climate change. With such reinvigorated cooperation, maybe more convincing and coherent positions could emerge to address the fragmentation that characterises the blocs contributing to such conferences.

In the words of Nelson Mandela, “It always seems impossible until it’s done.” Perhaps we need to add “...but we need to start to do it.”……Have your say…..