THE FINAL TWO DAYS IN DURBAN - INDIA AND EU HEAD TO HEAD, THE US AS BROKER, S.A. INVOKING GANDHI

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13 december 2011

[4C received the following article, taken from the E&E website, by email. No URL was included.]

NEGOTIATIONS: How a belligerent, sleep-deprived crowd in Durban arrived at consensus

Lisa Friedman, E&E reporter, Tuesday, December 13, 2011

DURBAN, South Africa -- In the end, a landmark U.N. climate deal struck here Sunday hung on a single word.

Crammed around a table at 3 a.m. in what delegates later dubbed "the huddle to save the planet," E.U. Climate Action Commissioner Connie Hedegaard went head to head with Indian Environment Minister Jayanthi Natarajan.

U.S. envoy Todd Stern, Chinese negotiator Su Wei and Brazilian Ambassador Luiz Figueiredo Machado stood around them, along with ministers from small island nations shaking their heads, scowling and offering suggestions.

Together, this group held the keys for charting a new agreement to fight climate change. Blocking the way, though, was a lawyerly but epic battle over describing that deal as a "legal instrument" or a "legal outcome."

Ultimately, it ended the way so many of these summits do: with a compromise that made many unhappy and others happy enough.

The final Durban Platform calls for a 2020 "protocol, or a legal instrument, or an agreed outcome with legal force under the Convention and applicable to all parties." In real words, it means that for the first time in history, by 2020 all major emitters, including the United States, China and India, will be held to the same legal obligations as industrialized nations in the quest to reduce global greenhouse gas emissions.

Getting that phrasing unlocked the European Union's promise to sign onto another phase of the Kyoto Protocol, something developing countries sorely wanted.

A win, after 15 hours of overtime

But the story of the words that held this U.N. conference hostage for a full 15 hours after the contract to use Durban's International Convention Centre expired underscores the deep geopolitical and economic tensions that make this international process unlike any other.


Along the way, the story of "legal outcome" versus "agreed outcome with legal force" featured new political alignments, accusations of sabotage, one diplomat standing on a chair to be heard and passionate speeches about the responsibility wealthy countries like the United States have -- and which many assert are trying to shirk -- in the fight against climate change.


The first fight was about a "framework." That was how the United States and the so-called BASIC countries of Brazil, South Africa, China and India initially envisioned a future new agreement forcing everyone to cut carbon.

Normally on opposing ends of the climate fight, the United States and some of the BASIC nations were strategically aligned in Durban. None were keen to sign up for a world where they would be legally bound to cut emissions.

The U.S. team said it was because it did not believe others like China were ready for a deal that included everyone and tried to avoid acknowledging that the U.S. Congress surely wasn't, either. The BASIC countries took varied positions, but essentially felt that before they agree to binding targets, wealthy historical emitters should first make good on unmet promises.

But the "framework" word was not strong enough for Europe, and it definitely was not good enough for the leaders of small island nations who fear their homes won't exist in a few decades. Forming an alliance, they and members of some of the world's poorest countries said they could never except such a weak word.

Parties were told to go back to the drawing board, and shortly after 11 p.m. Friday, they came out with a new possibility: Countries would aim for a "protocol or legal instrument." The new text noted the gap between emission reduction targets that major emitters had voluntarily pledged and what will keep the world from catastrophic warming. Rather than "encourage" a higher-level ambition, it said nations "shall" raise ambition levels.

"It's definitely strengthened," said Alden Meyer of the Union of Concerned Scientists, passing out hot-off-the-copier documents to reporters.

Midnight attack by India

Across a walkway, top negotiators from dozens of countries packed the room of yet another "indaba" -- a South African term meaning a meeting of elders that the conference had coined for the high-level gatherings.

A core group, including Stern and Hedegaard, sat around the table. India's Natarajan won a standing ovation when she skewered wealthy countries and defended the BASIC countries' position that they were being unfairly put upon.

"India is asking for space for basic development for its people and poverty eradication. Is this an unreasonable demand?" she said, according to a copy of her speech. She rebuked the Canadian minister for painting India as an obstructionist, saying that country and others that ratified the legally binding Kyoto Protocol "are walking away without even a polite goodbye."

Back in the larger conference center, Andrew Light, a senior fellow at the Center for American Progress, said it was starting to look like the United States was moving toward an agreement despite its initial reluctance.

"They're starting to see that if this whole thing blows up, they're not going to get another chance to push China into an agreement," Light said. "It may be ironic that the U.S. is the only one willing to push them, given we don't have the strongest hand to play, but I'm glad they're doing it."

Close to 2 a.m., most leaders trickled out of the indaba, saying they had to compare different texts. Like an interlocking puzzle, countries would only agree on one section -- a "big picture" plan for a future deal -- if they liked what they saw in plans for the Kyoto Protocol and a third document detailing long-term planning for elements outside of Kyoto like the Green Climate Fund, forest protection and transparency measures.

"The puzzle is either being put together or pulled apart," said Philip Weech, negotiator from the Bahamas, as he emerged.

Hedegaard walked out clearly rattled. "We still have a lot of text that is not there," she said. "Time is extremely short." China's Su Wei and South African Foreign Minister Maite Nkoana-Mashabane walked away ignoring reporters.

Stern was among the last to leave, talking animatedly with U.S. Treasury officials and others until after 2:30 a.m., saying only "We'll see how it goes" to a barrage of questions as he walked out.

But it was not looking good. The text on the Kyoto Protocol was finally out, and many developing countries felt it was weak at best.

"The initial reaction on the KP text is not positive," said Farrukh Khan of Pakistan. Nevertheless, bedraggled negotiators went back to their hotels, told to return at 8 a.m.

Sunrise hatches a 'skinny chicken'

By Saturday morning, the picture looked somewhat clearer, and some ministers caught flights out of the country. Then it all got fuzzy again as new text for the non-Kyoto elements, known here as long-term cooperative action, or LCA, came out pushing most issues off until next year.

"It's a pretty skinny chicken," said Jason Anderson of the World Wildlife Federation. Without requiring countries to raise their level of ambition, he argued, a mandate for a 2020 agreement -- or instrument or framework -- was meaningless. "There's no point in being legally bound to a 4-degree world," he said.

The text had other problems too, activists said. Most prominently, the Green Fund while established had no actual money in it and no process for raising funds.

Meanwhile, rumors filled the halls. At one point, a "non-paper," or unofficial proposal, surfaced among delegates and media purporting to be a product of negotiations among Europe, the United States, BASIC countries and Mexico.

Far weaker than had anything that had yet surfaced, the text called for "nationally appropriate mitigation targets" to continue through 2020, effectively barring implementation of a new treaty before that year. Hedegaard was enraged by the document, and others surmised attempted sabotage.

"We are not behind this," Hedegaard said.

At 1:30 p.m. on Saturday, leaders entered yet another indaba.

Security officers roped off the entrance. Outside, crews dismantled the trappings of COP 17. Folded chairs and tables rested on their sides. Daily programs and brochures for a "Green Institute of Learning" lay scattered on the grass.

"They're working, they're working," U.N. Framework Convention on Climate Change (UNFCCC) Executive Secretary Christiana Figueres said as she faced a crush of cameras.

Inside, the European Union and the Alliance of Small Island States (AOSIS) had put forward a new set of possibilities for closing the "gigaton gap."

Brazil's Figueiredo emerged around 5:30 p.m. to offer a South American version of time. "It's going to take some minutes," he said -- and when others perked up at the idea a deal could be imminent, he quickly backtracked, saying, "but hours are made of minutes."

Fights move into the open at dusk

Stern then left the meeting and headed to the men's room. Reporters mobbed him and learned that he favored Barcelona over Madrid in that night's soccer match.

But not long after, Figueiredo came out again and outlined an emerging deal that he said would be "historic."

The next fights would be in public, played out in three separate plenary sessions.

Almost as soon as leaders sat down behind their nameplates on long tables in the plenary room, divisions emerged.

Europe wanted the second phase of Kyoto to last through 2020, putting it in line with the mandate for a new agreement taking force by that year. Developing countries wanted the second phase of the Kyoto Protocol to last five years, forcing nations to ante up their ambition levels by 2017. The LCA text similarly violated a number of demands by developing countries.

"Do you think at this stage we are going to have consensus on an E.U. proposal that anchors a low level of ambition?" asked Venezuela's Claudia Salerno. She noted that an "extremely delicate line was crossed" in the text, deleting reference to the phrase "common but differentiated responsibilities."

That is a phrase from previous agreements that has become something of an exception from action for developing countries.

"That means for us there is a redistribution of responsibilities," Salerno said. "What is the news that I'm going to take home to my flooded country? Do we have to accept whatever, because it is late, because we are tired, because it is better than nothing?"

The intervention prompted an angry response from Hedegaard, who noted that Europe was trying to save the Kyoto Protocol from irrelevancy. And the European Union had objections of its own -- including weak language on the ambition gap and the fact that a process to increase it was dropped during the day. It also had a number of concerns over accounting of carbon credits, an issue delegates said was a major concession for Europe.

Papua New Guinea pleaded for everyone to play nice, and Brazil's Figueiredo watched the clock. He noted it was by then 9 p.m. already. It was time to move on to the next plenary.

"We all will have arguments for spending the whole night here, but I think we are in a very different political moment," he said. "We are in a political moment that requires action, that requires moving forward, that requires understanding that this COP 17 [can be] a major breakthrough in the history of this convention."

India attacks again at midnight

Stern warned that turning down one part of the package would unravel the others -- including the Green Climate Fund. "Believe me, there is plenty the United States is not thrilled about," he said. But, he said, "we don't have much time left here."

Yet, the night was far from over. India's Natarajan, in particular, was still unhappy with the "big picture" text for a 2020 mandate, fearing that her country, with millions still in poverty, would be asked to do too much. The current phrasing, "protocol or legal instrument," was, she felt, just too strong.

COP 17 President Mashabane called a break, and delegates waited again while ministers once again attempted to hash out the language. When they returned, India had successfully added a third option: a legal outcome.

But that was not going to pass muster with Hedegaard, or the vulnerable nations insisting on a strong and ambitious deal from everybody out of Durban. That is when the fireworks really started to fly.

What happened over the next hour was, to those who follow the U.N. climate process, nothing short of stunning. Developing countries took public a debate that has long been behind closed doors over how much responsibility those of different sizes and levels of wealth should bear. Some said it was like watching a family fight.

Hedegaard threw the first verbal punch, noting that it would come to no surprise that Europe could not accept the term "legal outcome." Natarajan hit back, saying she was informed India would be blamed if the Durban conference went down in flames.

"I'm sorry, madam. India will never be intimidated by threats or intimidation or any kind of pressure," she said. Threatening to reopen every word of the text -- sort of the U.N. version of a filibuster -- she said India had been flexible and deserved this.

"I am told that we are going to collapse the process. Tell me, it's just one more option. How is it a crime?"

China roars; South Africa summons the ghost of Gandhi

Yet though Natarajan talked about issues of equity among developing countries, not all stood behind her. The ambassador for Grenada, speaking for small island nations, said the "legal outcome" option "seems to me we are climbing down the ladder of ambition, which is very difficult for me to swallow."

Then he took a shot at major emerging economies, noting that they repeatedly raise issues of self-determination and the right to develop. "While they develop, we die," he said.

China's Xie Zhenhua took up Natarajan's case with a powerful and angry speech, saying wealthy industrialized countries have not even acted on the commitments they made 20 years ago when this U.N. climate process began. Yet, he said, they were making demands on poorer countries that were mitigating emissions.

"We are doing things you are not doing. What qualifies you to say things like this?" Xie said.

Finally, Mashabane pleaded for a compromise in the name of South Africa.

"In this land of Mahatma [Mahatma Gandhi started his law practice in South Africa], in this land of Chief Albert Lutuli ... in this country of [Nelson] Mandela and all the other heroes and heroines, we are without shame in reminding our friends that South Africa is the product of international solidarity. In the spirit of give and take, we want to save the UNFCCC process."

Then came the huddle.

With Stern playing a "brokering" role, he told reporters later, ministers and negotiators offered and rejected different wording options. Then Mashabane joined the group and, those were there said, ministers got down to business. Minutes later they struck a deal: an "agreed outcome with legal force."

Speaking first as the plenary reopened, Natarajan noted India's assent. Then Hedegaard gave her green light. Onlookers cheered. Russia groused that it wasn't invited to the big kids' table. And others, including Malaysia, Nicaragua, Bolivia and Venezuela, raised objections. But the consensus of most countries carried the final agreements on all parts of the package through. The final gavels fell at dawn.

In the end, even those who fought hard for the deal had a muted response. "It is a compromise deal," said Mohamed Shareef, deputy environment minister of the Maldives. "We wanted a very strong mandate from here. That is what we didn't get. But you don't always get what you want in this multilateral process."

Reporter Jean Chemnick contributed


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