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C O V E RIndia’s Environment Minister Jayanthi Natarajan (pic)made a strong plea at Durban for equity to underpinany future climate change regime.ciples in the decision.The draft decision proposedto the plenary by theSouth African Foreign MinisterMaite Nkoana-Mashabane,in her capacity as President ofthe 17th session of the Conferenceof the Parties (COP) to theUNFCCC, was to ‘launch aprocess to develop a protocol,another legal instrument or alegal outcome under the Conventionapplicable to all Parties,through a subsidiary bodyunder the Convention herebyestablished and to be known asthe Ad Hoc Working Group onthe Durban Platform for EnhancedAction’.This draft had been the outcomeof a series of closed-door talks overthe last few days and nights among20 to 30 Parties. The EU and otherEuropean countries and several developingcountries, including the Allianceof Small Island States, were insistenton a legally binding regime(thus the terms ‘protocol’ or ‘anotherlegal instrument’) whereas India andChina wanted to add the third optionof ‘legal outcome’.The third option was included inthe final draft put forward by the COP17 Presidency to the plenary. Althoughan appeal was made to acceptthe texts of the four decisions as awhole, the EU’s chief climate officialConnie Hedegaard asked for reopeningthe Durban Platform decision inorder to cancel the third option of ‘legaloutcome’.India’s Environment MinisterJayanthi Natarajan then made a strongplea for all options in terms of the legalform of the new process to remainon the table, including a ‘legal outcome’(instead of only a protocol orlegal instrument as possible options),stressing the need for equity and theprinciple of CBDR to be the centrepieceof the climate change debate.The Indian Minister appealed toParties not to push aside equity in theDurban outcome, as this would be thegreatest tragedy. The Minister was notprepared to give a blank cheque andsign away the livelihoods of the poorwhen she did not know what the document(from the new process) wouldcontain.India’s position was supported byseveral developing countries includingChina, Pakistan, Bolivia, Egypt,the Philippines and El Salvador.In the draft given to the final plenary,the new process of negotiationswas to commence work in the firsthalf of 2012 and was to be completedno later than 2015 in order for theadoption of a protocol, legal instrumentor legal outcome under the Convention,applicable to all Parties, atthe 21st session (in 2015) of the COP,and for it to come into effect and beimplemented from 2020. The optionof ‘legal outcome’ was the bone ofcontention.At the plenary, following the pleaby the Indian Minister to retain the‘legal outcome’ option, the EU’s ClimateChange CommissionerHedegaard proposed discussions withIndia on how to accommodate the latter’sconcerns over the issue of equity.The COP 17 President Nkoana-Mashabane then proposed a suspensionof the session (at around 3.30 amon 11 December morning) for an ‘informalhuddle’ between the EU andIndia to discuss this issue. This huddlesoon saw many other Parties joiningthe discussions, including theUnited States, China, and Brazil.According to one source whowitnessed what took place, India waswilling to take out the words ‘legaloutcome’ if the principles of equityand CBDR were incorporated in thedocument. According to thesource, the EU was willing toaccept this but US chief negotiatorTodd Stern opposed thisand said that equity and CBDR‘will never fly’ for the US andthus blocked an agreement betweenthe EU and India.Following further wrangling,in the final compromise,the words ‘legal outcome’ werereplaced with ‘agreed outcomewith legal force’, which wassuggested by Brazil’s chief negotiator,Ambassador LuisFigueiredo Machado.This left many wonderingwhat the difference, if any, was between‘legal outcome’ and ‘outcomewith legal force.’What was most worrying for ministersand senior officials from severaldeveloping countries who wereinterviewed was that the Durban climatetalks were marked by an attemptby developed countries to push asidethe principles of equity and CBDR,especially on the issue of launchingthe negotiations for a new regime. TheUS in particular was opposed to anyreference to equity and CBDR in thedecision to launch the new process.Despite the explicit absence ofthe words ‘equity’ and ‘CBDR’ in thetext, several lawyers and senior negotiatorswere of the view that a protocol,legal instrument or agreed outcomewith legal force under the Conventionmust be consistent with theexisting principles and provisions ofthe Convention and therefore the principlesof equity and CBDR can beimplied to apply. However, this viewcan be expected to be challenged, especiallyby the United States, whenthe negotiations start.The EU’s strong push for a newmitigation treaty came as a quid proquo for it to undertake a second commitmentperiod under the Kyoto Protocol(KP) for emissions reductions.A decision was also adopted on theKyoto Protocol on 11 Decembermorning. It however fell short of confirminga second commitment periodof the Protocol.According to one expert observer,the language of the Kyoto ProtocolTHIRD WORLD RESURGENCE No 255/25617