handshakeCross-posted from Climate Progress.

The expected endgame of the international climate talks in Durban is shaping up to be a fierce standoff.

A showdown has emerged between the E.U. and other parties over their conditions for agreeing to a second commitment period of the Kyoto Protocol. The first commitment period will expire in 2012. If it is not renewed, the fate of the instruments that support the world’s fragile carbon market is uncertain.

Japan, Russia, and Canada have all signaled that they are unwilling to continue with a second commitment of binding emissions cuts for the treaty, leaving only the E.U. ready to move forward.

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But the conditions the E.U. has asked for at this meeting to preserve the Kyoto Protocol are steep. In exchange for their commitment, they expect everyone else — in particular the other large greenhouse-gas emitters like the U.S., China, and India — to begin a road map for a process that will create a binding agreement on reducing emissions later in the decade. What we now know as the “mandate” debate has pulled everyone into a discussion over the fate of the Kyoto Protocol — including the U.S., which is not a party to it.

While the fate of U.S. emissions is not bound to the fate of the Kyoto Protocol, the fate of many of the most important achievements of the Obama administration in this forum are now tied to Kyoto through the mandate debate. Included in this list are the institutions that were created out of last year’s meeting in Cancun — such as the Green Climate Fund (tasked with mobilizing a large chunk of the promised $100 billion a year in climate financing by 2020) and the Clean Technology Center and Network — as well as progress they have made on pushing for a more rigorous system of transparency for measuring, reporting, and verifying (MRV) promises for emissions reductions.

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The dominoes could fall like this: If the U.S. and other parties say no to the E.U. demand for a mandate on a process of a new binding agreement, then the E.U. could in turn say no to a recommitment to the Kyoto Protocol.

If the E.U. passes on the Kyoto Protocol, then the G77 (the group representing most developing countries at this meeting) — which has been adamant in its insistence this year that the extension of the Kyoto Protocol was absolutely critical to it — could walk away. And if that happens, then all parts of the climate architecture moving through this process could come to a halt. The result would be that the final negotiating text that has been worked out here on the Green Climate Fund, the Clean Technology Center, and MRV could be left abandoned with no possibility of approving it before the parties go home. We’d have to wait another year until these valuable institutions were potentially picked up again and made a reality.

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With this much at stake, why would parties say no to the E.U.’s demands? The key is the insistence that the outcome of the new road map to emerge from this meeting end in a “legally binding” agreement. The E.U. wants some assurance that they will not be the only countries bound by an international regime to reduce their emissions. Currently, all other parties that have registered emissions-reduction targets have only done so through their official submission to the Copenhagen Accord in January 2010 — which is not legally binding.

The E.U. is also concerned about the math and physics of the matter. If they are the only party to continue with the Kyoto Protocol, then only 15 percent of global emissions will be bound under an international treaty. On the other hand, the combined pledges from the Copenhagen Accord cover countries representing over 80 percent of global emissions. If we’re going to get an agreement that binds everyone to a common set of rules and standards aimed at limiting temperature increase to 2 degrees C [3.6 degrees F], then a greater percentage of global emissions needs to be covered under a new instrument.

But so far there is little indication that the U.S., China, India, and several other parties like the idea of signing onto this package. While no serious objections have been voiced about authorizing a road map to come out of this meeting that will continue work on a new agreement in a stipulated amount of time, parties disagree on the idea of agreeing ahead of time to a legally binding outcome for this process.

This week several parties, such as the U.S. and India, expressed reservations that they can enter into a process that guarantees an agreement a legally binding outcome when they don’t yet know what the content of the agreement would be. The U.S. has also repeatedly demanded an all-inclusive binding target in order to craft a workable climate agreement. According to our lead climate negotiator Todd Stern, the U.S. is not necessarily opposed to a legally binding outcome, but rather to an outcome that, like the Kyoto Protocol, is binding only to some parties and not to others — regardless of the size, scale, and growth of their emissions.

The E.U. has been lockstep behind Connie Hedegaard, its commissioner for climate action, who claimed in a press conference on Wednesday that parties who don’t commit to b inding actions take on an “unbearable responsibility.”

But the insistence that parties agree on a process to create a legally binding outcome does not mean that those parties entering into negotiations have to say yes to anything that this process produces.

In an exclusive interview with Climate Progress, E.U. lead climate negotiator Artur Runge-Metzger explained that the E.U. was after something more akin to a couple getting engaged. If two people get engaged, then they aim for a particular legally binding outcome. As a process of achieving that outcome, they embark on a list of things to do — picking a date, a location, an invitation list, etc. — over a discrete period of time. But as everyone knows, an engagement, even a good engagement, is not necessarily a successful engagement.

Engagements can even end at the altar.

Similarly, Runge-Metzger acknowledged that if parties agreed to a road map leading to a legally binding agreement, they can pull out if it takes a turn to something they don’t want. The U.S. has been clear that it will not tolerate an agreement that once again leaves China in the position of not having legally binding emissions cuts while developed countries do. If the U.S. agrees to the E.U.’s proposal for a road map toward a legally binding outcome, and it loses the fight during the creation of a new instrument somewhere along the way to ensure that the agreement is reciprocal, then it can drop out of the process.

Nonetheless, many parties are still wary of signing on to the E.U. process. Right now, throughout the International Convention Center, negotiators are hard at work trying to find the sweet spot between the language the E.U. prefers for the outcome of a new negotiating process, and something that can garner more support.

This afternoon, a new text was introduced from the South African hosts of the meeting floating a compromise. Instead of initiating a process that leads to a legally binding commitment, it would “launch a process in order to develop a legal framework applicable to all under the United Nations Framework Convention on Climate Change after 2020.”

Unfortunately, reports from the floor are that the E.U. will reject this language.
These reasons are certainly not without merit from the perspective of their aims in initiating this process. After all, the current Kyoto Protocol is a legal framework, that China has signed onto, but it does not bind China legally under an international process of scrutiny, review, and enforcement to report or reduce its emissions.  Similarly, the original treaty that created the UNFCCC is a legal framework, ratified by the U.S. Senate, but it does not require the U.S. or anyone else to reduce emissions.

As negotiators go back into meeting rooms late into the night to try and hammer out a new compromise on the E.U. roadmap, the U.S. should aim to broker a deal to get to “yes.” The stakes are far too high not to.

As long as the U.S. is absolutely clear on its conditions for signing onto a legally binding deal down the road, it can sign onto a road map for a legally binding instrument with fair warning to all parties that if conditions are not met the engagement will be off. Some will worry that this could be the U.S. in Kyoto all over again.

In the run-up to Kyoto, the U.S. worked hard to create a climate treaty. But, months prior to Kyoto, the U.S. Senate voted 95 to 0 to not even consider ratifying a treaty that divided the world into two categories, requiring emissions reductions for developed parties and not for developing parties — regardless of the size, scale, and trajectory of their emissions. Since the U.S. worked so hard to shape that treaty, it was a huge disappointment, and a blow to our international credibility to have to bow out of the process.

But this time around is not like Kyoto. The U.S. has been perfectly clear the last three years that we will not accept a non-reciprocal, non-conditional agreement on emissions reductions from developing countries. If our conditions are not met, then we do not have to sign on to the final product (nor does any party if their conditions are not met). On the other hand, if our conditions are clear, then we can work toward an outcome that would make for an agreement that would pick up where the Kyoto Protocol and the Cancun Agreements will leave us off in 2020.

And if we don’t make a deal, and this meeting ends without an outcome, the Obama administration risks losing everything it has worked for over the last several years and the progress that has been made which, though unsatisfying to many, nonetheless gives us critical means for moving forward.

After all, whether the E.U. gets its way or not, the outcome over the mandate debate will not ensure that another ton of carbon gets reduced from the world’s overall emissions. At best, the process the E.U. has proposed would lead to an agreement that would require reductions in emissions after 2020, given the time it will take to finalize a treaty and enter it into force.

On the other hand, the Green Climate Fund is the only measure that could overcome the twin “gigaton gaps” that exist from the pledges made so far out of the Copenhagen Accord. As we argued in a report published last year, it is the key instrument for mobilizing the finance needed to increase the ambition of parties under the Copenhagen Accord, as well as a critical means to provide directed financing to close the gap between those pledges and a path by 2020 that gives us a chance of stabilizing at 2 degrees Celsius.

If this meeting collapses over the mandate debate then we risk the postponement, and worse, the abandonment of this effort. It is not clear when we will get a chance again to put all the major carbon emitters on the road to a common effort.