On 11 December 1997 nations of the world gathered in Japan to sign a legally binding instrument intended to begin the long task of reducing global greenhouse gas emissions. Today, as the Kyoto Protocol celebrates its fourteenth birthday, questions about its future pushed the United Nations climate talks to the brink of complete collapse in Durban, South Africa.

The protocol’s fate as well as that of the entire UN negotiations process came down to two words – “legal outcome” – and a series of rather strange and certainly unusual public huddles (see photo, taken by yours truly standing atop a chair moments before being removed from said chair by police). We’ll get back to that, but first a little background.

Going into the Durban meeting the European Union agreed to demands by developing countries for a second commitment period under the Kyoto Protocol, which is set to go dormant at the end of next year (for details, see our Durban special). Europe’s condition was that the rest of the world commit to negotiations on a binding treaty that would carry things forward after that. As the talks extended into Saturday evening, most of the major emitters, including Brazil, South Africa, China and the United States, agreed to language that would create a new negotiating track to pursue either “a protocol or another legal instrument.” Only India objected.

The text presented to the full body by South African organizers late Saturday evening included “a protocol, another legal instrument, or a legal outcome”. The last option came at the behest of India, which didn’t want to commit itself to emissions reductions, but that drew objections from Europe and many other countries – both developing and developed – that are seeking a legally binding treaty.

“The European Union has shown patience for many years,” said Connie Hedegaard, the EU’s commissioner for climate change. “We don’t’ think we ask too much of the world … that after this second commitment period all will be equally bound.”

Indian Environment and Forests Minister Jayanthi Natarajan proceeded to give an impassioned speech regarding responsibility for historical emissions and equity issues that date back to the original 1992 Framework Convention on Climate Change, which affirmed the idea that countries have “common but differentiated responsibilities.” That language disappeared from the new proposal, which seeks to bring developing countries on board for binding emissions cuts.

“Does climate change mean you give up equity?” Natarajan asked. “I’m sorry madam chair. India will never be intimidated by threats … or any kind of pressure like this.“

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Although complete collapse cannot be ruled out, the general shape of a deal is coming together here as the climate talks head into their final day in Durban, South Africa. It’s not the deal that environmentalists want. It’s certainly not the deal that scientists say would be advisable if the goal really is to limit global warming to 2 degrees Celsius, as stated. But it’s an agreement that could allow ministers to kick the can down the road and claim some form of success.

“There’s a landing strip for a deal in sight,” says Tim Gore, International Climate Change Policy Adviser for Oxfam in the United Kingdom. “What’s missing, of course, is how you ramp up ambitions, and that’s a big question.”

Gore says that the European Union and the Group of 77 plus China, the main bloc of developing countries, are converging on a second commitment period for the Kyoto Protocol, which is poised to go dormant at the end of 2012. Similarly, the European Union, the United States and the major developing countries such as China, India and Brazil all seem to be talking about 2020 as a time-frame for additional greenhouse gas reductions that would build on the global agreement inked last year in Cancun, Mexico. What we don’t know is how it will come together.

The EU has so far stuck to its position that it won’t go forward with Kyoto unless there is a roadmap for a global deal that brings everybody — including the United States and the major emerging economies — on board for a legally binding treaty. Despite some indications of a shift in its position, China has yet to reveal whether it will allow itself to be bound by international law. And the United States is still arguing that global treaties are overrated, raising concerns that intransigence on the part of the world’s largest historical emitter could once again block progress across the board.

Speaking defensively after a protester interrupted the US press conference on Thursday, lead negotiator Todd Stern denied that the United States is blocking a deal. Stern waffled four ways before he seemed to indicate in response to questions that the United States has always supported the long-term goal of a legally binding treaty. That led to reports that the United States had changed its position. Hours later, the US State Department quashed all speculation with a simple correction:

“Todd Stern said in his press conference today that the United States could support a process to negotiate a new climate accord. He did not say that the United States supports a legally binding agreement as the result of that process. The EU has supported both a process and the result being a legally binding agreement.”

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