Durban Conference Ends in Uncertainty and Canada Withdraws from Kyoto Protocol

By Patricia A. Koval, Dennis E. Mahony, Michael Pickersgill, Tyson Dyck and Christie Kneteman

From November 28 to December 11, 2011, delegates from 194 countries met in Durban, South Africa, for the 17th Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC). Since the Kyoto Protocol’s initial commitment period expires at the end of 2012, the Durban conference focused on the extension or replacement of the existing UN climate regime.

The negotiations continued for two days longer than scheduled and ultimately reached an agreement, titled the "Durban Platform for Enhanced Action" (the Platform). The agreement commits all UNFCCC parties (the Parties) – including China, the United States and India – to establish, by 2015, "a protocol, another legal instrument or an agreed outcome with legal force" that would come into force in 2020. It does not require the Parties to commit to any binding greenhouse gas (GHG) emission reductions or otherwise specify any subject matter. The result is considerable uncertainty about the ultimate aim of the exercise. Under the Platform, the Parties could agree, for example, to an "outcome with legal force" concerning adaptation funding or another objective that does not involve mitigation targets. Nevertheless, the Platform is being touted as an important framework for developed and developing country Parties to continue negotiations. The text of the Platform is available here.

In addition, 35 developed country Parties committed to taking on binding emission-reduction commitments after the Kyoto Protocol expires on December 31, 2012. This second commitment period will run from January 1, 2013 to either December 31, 2017 or December 31, 2020, with the final expiration date to be decided upon next year. The Parties committing to the second round of reduction obligations were primarily from the European Union and have already committed to internally binding emission-reduction targets. Certain other industrialized parties, such as Australia, will not take on targets under a second commitment period until the new international climate agreement envisioned by the Platform has been finalized. Japan and Russia have also declared that they will not submit to a second commitment period under Kyoto.

Within a day of the negotiations closing, Canada announced that it will formally withdraw from the Kyoto Protocol before year-end, with the intent that it will no longer have an enforceable emission-reduction commitment. For some years it has been apparent that Canada would significantly exceed its Kyoto commitment to reduce the country’s GHG emissions. Canada will, however, remain a party to the UNFCCC and a participant in the negotiations thereunder.

As a result of the preservation of Kyoto and a second commitment period, emissions offset markets based on the Clean Development Mechanism (CDM) and Joint Implementation (JI) will remain active. Although details have not been finalized, it is likely that the EU will continue to accept certified emission reductions (CERs), which are awarded under the CDM to emission-reduction projects in developing countries, and emission-reduction units (ERUs), which are awarded under the JI to such projects in certain developed countries. The EU has committed to a third phase of its Emissions Trading System, which contemplates the continued use of international offset credits such as CERs and ERUs.

Carbon markets will likely continue to play an important role in the new international climate treaty to be established by 2015. According to Christiana Figueres, the Executive Secretary of the UNFCCC, the extension of Kyoto will enable its accounting rules, flexibility mechanisms and markets to remain "as models to inform future agreements." However, little progress was made on a mechanism for reducing emissions from degradation and deforestation in Durban, partly because certain countries were concerned that a market-based mechanism would lead to corruption and the exclusion of indigenous peoples. Moreover, it still remains to be seen how the Parties will finance the Green Climate Fund, which is designed to fund mitigation and adaptation measures in developing countries.

The next round of UNFCCC negotiations will take place in Qatar from November 26 to December 7, 2012.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

For permission to republish this or any other publication, contact Janelle Weed.

© 2021 by Torys LLP.
All rights reserved.