Justice and choice of legal instrument under the Durban mandate: Ideal and not so ideal legal form

At the farewell drinks at the end of my time working for the Australian Department of Foreign Affairs and Trade, one of my colleagues reminded me how I arrived at the office (Australian Mission to the UN in Geneva) late in the day and with a big grin said: 'We made fantastic progress after four hours of negotiations today: we removed two commas and added a square bracket!' It is indeed easy to be cynical about the UN treaty-making system. The current snail's pace in developing an effective global climate agreement only fuels this cynicism. But global negotiations on a climate treaty remain extremely important. This importance is linked to justice: an effective climate treaty is a necessary condition for not unfairly transferring the costs of climate change onto future generations. Climate change will seriously impact current generations within their lifetime, with increased mortality from extreme weather events and tropical diseases (IPCC 2014b). But the most severe impacts will be felt by unborn generations, and these future generations will face risks of irreversible harm to the global ecological system and climate. The IPCC 5th Assessment Report highlights some of these risks including the significant risk of meltdown of the Greenland ice sheet (IPCC 2014a). This chapter aims to explore the linkages between justice and political feasibility in considering what type of instrument should emerge from the Durban negotiation process for a new global climate agreement and the related issue of whether mitigation commitments should be binding or not. Put differently, what 'ideal' form should a climate agreement take in the 'nonideal' context of states being reluctant to take the required action in deeply cutting their greenhouse gas (GHG) emissions? The terms 'justice' and 'fairness' are used interchangeably in this chapter (see Section 6.2). The term 'feasibility' is used to denote what is possible and probable given a number of constraints including countries' current negotiating positions and the structure of the treaty-making process (see Gilabert and Lawford-Smith 2012: 809).