TWN Info Service on Climate Change (Dec10/02)
17 December 2010
Third World Network

Dear friends and colleagues,  

Of concern to many supporters of multilateralism at the United Nations is a precedent that may have been set in the Cancun climate conference, whereby the methods and processes usually seen at the World Trade Organisation were used to obtain an outcome. Below is an article by Martin Khor, Executive Director of South Centre, assessing what happened at the Cancun conference, in terms of process and substance.

With best wishes,

Third World Network

Cancun meeting used WTO-type methods to reach outcome
Published in SUNS #7062 dated 16 December 2010

Geneva, 15 Dec (Martin Khor*) -- The Cancun climate conference ended early on 11 December, setting a precedent of sorts for a UN meeting and "international governance" by using World Trade Organization-style methods and processes to reach an outcome.

Throughout the two-week conference, there was a mixture of small "Green Room" meetings, "confessionals" and informal consultations conducted by pairs of Ministers and by the Presidency of the conference (Mexico), informal plenaries as transparency exercises to inform all participants on what was going on, and texts written or issued by facilitators and eventually by Mexico.

But the Cancun meeting had one more novelty: a new definition of "consensus."

When Bolivia alone objected to the adoption of the final text, the President of the conference, the Mexican Foreign Minister Patricia Espinosa, brought down the gavel anyway, saying that a single country could not prevent a consensus decision, and declared that the text had been adopted!

[The concept of consensus decision-making came into vogue in post-war international systems at the General Agreement on Tariffs and Trade (GATT-1947), a provisional treaty. The Marrakesh Treaty for the WTO (concluded in 1994 and came into being in 1995), which mandated the continuance of the GATT consensus decision-making, provided specific international treaty language for the term.

[Article IX:1 of the Marrakesh Treaty for the WTO stipulates that "The WTO shall continue the practice of decision-making by consensus followed by GATT 1947...". A footnote defines it as "The body concerned shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member, present at the meeting, when the decision is taken, formally objects to the proposed decision". In mandating the continuance of the consensus decision-making practice, the Marrakesh treaty, however, also specifically provided in the same Article IX:1, "where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting." -- SUNS]

The convening of a group of 40-50 delegations mid-way through the conference was reminiscent of many past WTO Ministerial meetings, where the practice is dubbed the "Green Room". This was accompanied by the selection of pairs of Ministers to co-facilitate consultations on particular issues, which is what was done at the WTO Ministerials in Doha in 2001 and in Cancun in 2003.

As at the WTO meetings, the co-facilitating Ministers at the climate talks in Cancun were not selected by the members, but appointed by the host country, Mexico.

In various ways, the Cancun meeting was more transparent and inclusive than the Copenhagen conference a year ago: more countries were included in the Green Room meetings, there were many consultations, and informal sessions open to all were held to inform participants as to what was happening.

But in one way, there was less openness in the process.

At Copenhagen, it was clear that the Copenhagen Accord was crafted at a meeting between the US President and the political leaders of BASIC (Brazil, South Africa, India and China) and given to the EU and others in the Green Room to go along with it. When it was presented to the full plenary, the process was objected to by some countries, and the text was only taken note of.

At Cancun, the events of the last day were not and are still not clear generally to the participants. One of the key draft texts (covering issues of the ad-hoc working group on long-term cooperative action - AWG-LCA) that was scheduled to be issued at 8.30 a.m. on the final day (10 December), was only issued at  5 p.m.

There were various rumours that the draft or parts of it were being shown to various delegations (or at least their heads) to be cleared or amended. Up to now, it is not known which countries or persons did the drafting or the overall piecing together of the final text.

Despite the highly unorthodox methods, as far as the UN processes and meetings are concerned, the final texts found general agreement with delegations except for Bolivia.

One reason perhaps was the involvement of several Ministers who were concerned more with the general political aspects, rather than the nitty-gritty content of the many issues. The political concern was to avoid the failure of another climate conference, following last year's Copenhagen disaster.

The acceptance of an inadequate text was seen by many as the price to pay for getting a result at Cancun, because another collapse would have knocked another hole into the reputation of the UN Framework Convention on Climate Change (UNFCCC) and set back the multilateral process.

The Mexican hosts also decided on a risky all-or-nothing approach, in which it was not possible to get results in one area unless there were results in all other areas. In a way, this was forced on them by the strategy adopted by some developed countries.

In particular, the United States made it clear from the start that meeting the very modest demands of developing countries (to establish a new climate fund, a technology mechanism and an adaptation committee) would require acceptance of the US demands of anchoring the pledges made under the Copenhagen Accord into the Convention, and getting a strong system of MRV (measuring, reporting, verifying) and of ICA (international consultation and analysis) of mitigation actions of developing countries.

Although most delegates were either relieved or glad that multilateralism had been revived at Cancun, many negotiators from developing countries were privately expressing disappointment and concern that the final texts did not reflect a balanced outcome, that in fact the developing countries had made major concessions and that the developed countries had largely got their way.

Moreover, there was serious concern that from a climate-environmental point of view, the texts fell far short, or had even gone backwards, in terms of controlling the Greenhouse Gas emissions that cause climate change.

One senior negotiator of a developing country summed up his feelings, as he was leaving Cancun: "We saved the system but the climate and people were sacrificed."

The Cancun conference suffered an early blow from Japan's announcement that it would never ever agree to making another commitment under the Kyoto Protocol. Its first commitment will end in 2012 and the deadline for finalising the emission-reduction figures for the second period had long passed in 2009.

The developing countries had made it their main demand, that the figures for the Kyoto Protocol's second period be finalised in Cancun, or at least that a clear road map be drawn up for the finalisation in 2011. However, this goal was rudely swept aside by Japan's aggressive stand on Day 1 and the conference never recovered from that blow.

The final text failed to ensure the survival of the Protocol, though it sets some terms of reference for continuing the talks next year. The Cancun meeting in fact made it more likely for the developed countries to shift away from the Kyoto Protocol and its binding regime of emission reduction commitments, to a voluntary system in which each country only makes pledges on how much it will reduce its emissions.

In the Kyoto Protocol (KP) system agreed to for the second period, a top-down aggregate reduction figure based on what science requires (taken to be the Intergovernmental Panel on Climate Change report's 25-40%, and taken by developing countries to be a more ambitious 40-50%) would first be agreed on, and then developed countries would have to make their commitments (comparable with one another) and these would have to add up to the aggregate.

In the voluntary pledge system, there would not be an agreed prior aggregate figure, and no system of ensuring comparability of efforts or that the sum of pledges is ambitious enough to meet the scientific requirement.

The Cancun text also recognised the emission reduction targets that developed countries listed under the Copenhagen Accord.

But these are overall such poor targets that a recent UN Environment Programme report warned that the developed countries by 2020 may decrease their emissions by only a little (16%) in the best scenario, or even increase their level (by 6%) in a bad scenario. The world would be on track for temperature rise of 3 to 5 degrees by century's end, which would be catastrophic.

The text urges developed countries to raise their mitigation targets, and makes an indirect reference to the 25-40% aggregate emission-reduction figure, and thus points to a process of taking the pledges so far made as only an initial starting point. This is weaker than the KP's binding system, and the AWG-LCA's obligation for non-KP developed countries to do a comparable effort.

Even as it prepared the ground for the "great escape" of developed countries from their commitments, the Cancun text introduced new disciplines for developing countries.

They are now obliged to put forward their plans and targets for climate mitigation, which are to be compiled in a document and later in registries.

It is a first step in a plan by developed countries (they have been quite open about it) to get developing countries to put their mitigation targets as commitments in national schedules, similar to the tariff schedules in the World Trade Organisation.

The Cancun text also obliges developing countries to report on their national emissions every two years as well as on their climate actions and the results in terms of emission avoidance.

These reports are to be subjected to detailed scrutiny by other countries and by international experts. The Cancun text in fact gives a lot of space to the details of these MRV and ICA procedures.

These are all new obligations, and a great deal of time was spent in Cancun by the developed countries (especially the United States) to get the developing countries to agree to the details of MRV and ICA.

Many developing-country officials were increasingly worried in Cancun about how they are going to implement these new obligations, as a lot of people, skills and money will be needed.

In fact, the developing countries made a lot of concessions and sacrifices in Cancun, while the developed countries managed to have their obligations reduced or downgraded.

Cancun may be remembered in future as the place where the UNFCCC's climate regime was changed significantly, with developed countries being treated more and more leniently, reaching a level like that of developing countries, while the developing countries are asked to increase their obligations to be more and more like developed countries.

The ground is being prepared for such a new system, which could then replace the Kyoto Protocol. Cancun was a milestone in facilitating this.

The Cancun conference also agreed on establishing a new global climate fund under the UNFCCC to help finance mitigation and adaptation. No decision was taken on how much money the fund will get.

However, the text mentions that the developed countries agreed to mobilise $100 billion by 2020, with conditions of appropriate mitigation and transparency by developing countries. It is unclear how much of this will be from the public or private sectors, or from grants versus loans and investments.

A committee is mandated to design various aspects of the fund. However, it was agreed beforehand that the initial trustee of the fund will be the World Bank, a key demand of the United States which many developing countries had been opposing, as they wanted competitive bidding rather than appointing the Bank upfront.

A technology mechanism was also set up under the UNFCCC, with a policy-making committee, and a centre.

However, the Cancun text avoided any mention of intellectual property rights (IPRs), which have an influence over developing countries' access to and cost of technology.

The United States had made it very clear that it would not accept even the mere mention of IPRs in any text, while the developing countries wanted to at least ensure that the discussion on IPRs be continued. The no-mention demand triumphed.

The Cancun conference was also marked by a questionable method of work, quite similar to the WTO but not used in the United Nations, in which the host country, Mexico, organised meetings in small groups led by itself and a few Ministers which it selected, who discussed texts on the various issues.

The final document was produced not through the usual process of negotiations among delegations, but compiled by the Mexicans as the Chair of the meeting, and given to the delegates for only a few hours to consider, on a take-it-or-leave-it basis (no amendments are allowed).

At the final plenary, Bolivia rejected the text, and its Ambassador, Pablo Solon, made a number of statements giving detailed reasons why. Bolivia could not accept a text that changed the nature of developed countries' commitments to a voluntary system of pledges, nor to accept the low pledges they had made, which would lead to a disastrous degree of global warming, which its President had termed ecocide. It could also not accept an undemocratic process through which its proposals (on mitigation, the use of market mechanisms, and on the need to address IPRs) had been swept aside.

Bolivia made clear it could not adopt the text and that there was thus no consensus. The Mexican foreign minister said that Bolivia's views would be recorded, that one country could not prevent a consensus, and declared the text was adopted.

The Mexican way of organising the writing and later the adoption of the Cancun text raises questions about the future of UN negotiating procedures, practices and decision-making.

The importation of WTO-style methods may in the immediate period lead to the "efficiency" of producing an outcome, but also carries the risk of conferences collapsing in disarray (as has happened in several WTO ministerial meetings) and in biases in the text, which usually have been in favour of developed countries.

When the dust settles after the Cancun conference, a careful analysis will find that its text may have given the multilateral climate system a shot in the arm and positive feelings among most participants because there was something to take home, but that it also failed to save the planet from climate change and helped pass the burden of climate mitigation onto developing countries.

Many delegates and observers, however, were looking positively to the future work. From this low base level of ambition in climate terms, there is much work to be done in 2011 to raise the level of ambition in both environmental and development terms, save and to reorientate the international system of cooperation to address the climate crisis.

(* Martin Khor is the Executive Director of the South Centre.) +