A landmark in climate litigation

Posted by: Frances Lawson

As legal precedents go, this could be one of the most significant of our time. A Dutch court has just compelled the country’s government to increase its carbon emissions reductions over the next five years.

Basing its judgment on scientific consensus as regards climate change, the Dutch court in the Hague considered that current government policies would only deliver an emissions reduction of 17% by 2020, relative to 1990 levels – the crucial benchmark for the developed world. The court held that the scientific consensus on climate change and the international agreements in place require reductions of between 25% and 40% by 2020 to be made by developed nations in order to limit warming to the crucial level of 2 degrees Celsius. The Dutch Government therefore needed to do more to “counter the imminent danger posed by climate change, given its environmental obligations”. The Dutch Government is now obliged to meet a 25% reduction target over the next five years.

This was a case of “people power”, the litigation having been brought by a class action of 900 Dutch citizens asserting that anything above 2 degrees of warming would constitute a “violation of human rights”. With President Francois Hollande set to launch a “Declaration of Human Rights and Climate Change” as part of the French Presidency of the COP21, the human rights aspect to climate change is likely to feature with increasing prominence over the coming years … not least as a vehicle for bringing climate actions before the courts.

The judgment in English can be found here

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Is it time for a change of approach to the climate change negotiations?

Posted by: Frances Lawson

In a highly divisive arena where common ground remains at a premium, one area of agreement among all the actors involved is that COP21 needs to be presented as a success. It is therefore easy to find positive stories, some real, some spin, proclaiming the progress made and extolling the commitment of the international community to reaching an ambitious agreement in Paris.

Two things that the negotiations do not lack are good intentions and effort. There is no longer a debate among world leaders or their deputies about the importance of climate change – the science has silenced any such scepticism. The unity of willpower has also seen considerable time being invested in the negotiations over the past 23 years since the Framework Convention was signed in 1992, with increasing levels of effort in recent years.

Despite 23 years of good intentions and effort, however, it is sobering to look at where the world has got to in its efforts to tackle climate change. Despite the Convention’s original objective of avoiding dangerous anthropogenic climate change, that very same danger looms larger than ever over two decades later. Global emissions have continued to rise, as have scientific predictions as to the amount of warming that the world may experience if current emissions pathways continue. In other words, twenty Conferences of the Parties, hundreds of negotiating sessions and other meetings and a convoluted legal architecture have failed to set us on the path to achieving what was intended in 1992.

Perhaps it is therefore time to reflect on whether the form of the international climate change negotiations may be hindering the realisation of the regime’s objective. Perhaps the word ‘negotiation’ is part of the problem. Negotiation is inherently adversarial – it involves parties focusing on their own self-interest more than on meeting a shared objective. In negotiation, parties keep their cards close to their chest, they seek first and foremost to achieve wins for themselves. In the pursuit of narrow self-interest, inevitably the needs of others, or even common aims, are relegated to a secondary level.

Contrast this with a mediation approach. In a mediation, a specialist mediator helps the parties to engage in ‘win-wins’, with more of a collaborative, problem-solving approach that focuses on identifying synergies, areas of agreement and common interest so that the headline problem that has brought the different parties together is resolved. The current negotiations have facilitators who try to do this, but the overall approach remains one of ‘facilitated negotiation’ rather than of true mediation. Perhaps, therefore, as much as the Parties are committed to reaching agreement on their common climate goal, the ‘hard-bargaining’ and ‘positional’ approach inherent in negotiation techniques is preventing this by relegating the shared interest in tackling climate change into second place behind Parties’ more immediate priorities.

Whether or not more of a mediation approach is the answer, or part of the answer, to unblocking the recurrent impasses in the climate change negotiations, the fact remains that the current approach is not able to deliver what the world needs. Only by questioning that approach and giving serious consideration to alternatives are we likely to move from good intentions and earnest effort into the actual results that we all wish to see.

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Intended Nationally Determined Contributions and the 2015 United Nations Climate Change Negotiations

Posted by: Frances Lawson

Since the 19th Conference of the Parties (COP) to the UN Framework Convention on Climate Change, parties have been developing their Intended Nationally Determined Contributions (or INDCs) to comprise the mitigation commitments for post-2020 under the new protocol or other legally binding instrument to be agreed at COP21 in Paris in December 2015. This article provides a brief insight into what an INDC is intended to be, and analyses those of four important, but very different, players, in the international climate change negotiations – the USA, the EU, Russia and Mexico.

What is an INDC?

INDCs were conceived in 2013 at COP19 in Warsaw as a way of lessening the largely top-down approach to climate change mitigation under the Kyoto Protocol, and rebalancing it with more of a bottom-up approach that marries parties’ national circumstances and capabilities with the necessary global framework to fulfil Article 2 of the Convention (1) and achieve the target of limiting global warming to 2 degrees Celsius. (2) As they are “intended” contributions towards meeting the target, INDCs do not contain final numbers and parties retain the liberty to make changes after publication. The importance of the contributions being “nationally determined” is that it enables each party to define what it considers to be a fair and ambitious contribution that reflects the principle of Common But Differentiated Responsibilities and Respective Capabilities (CBDR&RC). Importantly, INDCs are made without prejudice to the legal nature of the contributions. In other words, by making a mitigation commitment in an INDC, parties are not automatically accepting for it to be legally binding. The legal nature of parties’ commitments is one of the key issues on the table for determination at the Paris conference.

The INDC process involves parties indicating publicly in written form what action on mitigation they are prepared to take from 2020 onwards, primarily in terms of a percentage emissions reduction against a baseline. Following calls from developing country parties for adaptation to be afforded equal priority with mitigation, it was decided at COP20 in Lima that parties have the option also to include adaptation commitments within their INDC.

All parties were invited to submit their INDC to the UNFCCC Secretariat “well in advance” of COP21 in Paris, and by the end of March 2015 for those able to do so. To date, only eight parties have submitted an INDC. The Secretariat is charged with producing a synthesis report by 1st November 2015 of the aggregate effect of all the INDCs submitted by 1st October.

The four examples below show the range of approaches being taken to INDCs by key parties.

Russia’s INDC

The language of the Russian INDC is both provisional and conditional; it states that a “final decision” on the INDC will only be taken at the conclusion of the international negotiations and is dependent upon the commitments made by the “major emitters”. Russia’s provisional proposal is for an emissions reduction of 70-75% relative to 1990 levels for the period 2020-2030. This target will be met without the use of international carbon markets.

Although at first blush, this target seems impressive, it reflects no real increase in ambition relative to Russia’s binding domestic commitment of a 70-75% reduction by 2020. The Russian INDC commitment is essentially, therefore, a carbon intensity target; rather than achieving an absolute reduction in emissions, Russia will seek to ensure that its continued economic growth occurs in a way which has no net effect on emissions. There is no adaptation commitment in the INDC.

The EU’s INDC

By contrast, the EU’s pledge is to make an unconditional commitment to reduce all GHGs by at least 40% by 2030 relative to 1990 levels, regardless of the outcome of the negotiations or the commitments made by other parties. Furthermore, the words “at least” show that the EU’s level of ambition may be increased further. The mitigation commitment also reflects an increase in ambition from the 20% by 2020 target that the EU pledged in the previous negotiations, and an abandonment of the conditionality approach whereby that percentage would be increased to 30% if other countries followed suit. Similarly to Russia, none of that contribution will met by use of international market-based mechanisms. There is no adaptation commitment.

The US’s INDC

The target is for a 26-28% reduction in economy-wide emissions by 2025 relative to the 2005 level, with “best efforts” to achieve a 28% reduction. This, says the US, represents a doubling of its annual emissions reduction. As with the EU’s INDC, this commitment is unconditional and therefore independent of the outcome of the negotiations or the contributions of other parties. It is important to note the use of a different baseline relative both to the Russian and EU INDCs, but also in relation to the Convention’s ultimate objective, all of which are based on emissions as at 1990. This does mean that, although a significant step forward, the US’ level of ambition remains some way below that of other comparable economies. Like the EU and Russia, however, the US’s position is that at present, the target will be met without the use of international markets, although this could change.

The INDC also gives an insight into the US’ longer-term position by stating that the 2030 target is consistent with being on track to reduce emissions by 80% by 2050.

As with the previous two INDCs, there is no adaptation commitment, despite the US having suffered a number of climate change-related natural disasters.

Mexico’s INDC

This is the only one of the four to contain both a mitigation and adaptation dimension. The mitigation commitment is comprised of an unconditional and a conditional commitment, covering not only all greenhouse gas emissions but also “Short-lived Climate Pollutants” (SLCP). The unconditional commitment is to reduce emissions of GHGs by 25% to 2030 relative to BAU levels – consisting of a 22% reduction of GHGs and a 51% reduction of black carbon. The conditional element is that this commitment could be increased to 40% (36% for GHGs and 70% for black carbon) if the global agreement addresses certain specified
topics: international carbon price, carbon border adjustments, technical cooperation, access to low-cost financial resources and technology transfer – all of which must be at a “scale commensurate to the challenge of global climate change”. The Mexican position is that the unconditional emissions reduction target can be met without the use of international market mechanisms (although it is noted that such mechanisms would assist implementation); whereas the conditional target would require the use of such mechanisms – international, regional and bilateral.

In terms of adaptation, Mexico proposes a suite of actions at national level for the period 2020 to 2030 to increase the country’s resilience to climate change. The proposed actions cover the ‘social sector’, the ‘ecosystems’ sector and the infrastructure sector, and therefore represent a comprehensive approach to addressing the issue.

Conclusion

INDCs are, and will be, highly diverse given the differing positions and circumstances of the parties. It will therefore be a considerable challenge for the Secretariat to compare them and to ascertain whether or not the commitments within are sufficient to meet the 2 degrees Celsius target and the objective of the Convention.

In terms of ambition, the four INDCs above present a mixed picture. Given that the US has already achieved a 17% reduction in GHGs relative to 2005 levels, the INDC commitment reflects only a further reduction of just 9-11% to 2025. The Russian commitment is even more disappointing; a lot of the 70-75% commitment is “hot air” stemming from industrial decline since the fall of the Berlin Wall, and also relies on maximum account being taken of carbon sequestration in forests which is yet to be agreed at international level. It also fails to increase the level of ambition relative to what is already enshrined in its domestic legislation for the period to 2020.

Two key topics of discussion at COP21 in Paris will be as follows: first, the legal form of the Agreement, and secondly, if the Agreement is to be a legally binding treaty, whether the INDCs shall be housed within the legal instrument itself, so that the commitments are internationally binding, or accommodated outside of the legal architecture and giving rise solely to international accountability. The position of the US will be crucial to the overall outcome in Paris. Given the need for Senate advice and consent in order for international law to become binding in the United States unless the same commitment is already part of domestic law, housing the INDCs outside of the legal architecture is likely to be the country’s preferred option. This may enable ratification of the new legal instrument through executive action by President Obama alone, although the position remains unclear.

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References

(1) 1992 United Nations Framework Convention on Climate Change. Article 2 provides “The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of
greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened
and to enable economic development to proceed in a sustainable manner.”

(2) As agreed at COP16 in Cancun in 2010 (Decision 1/CP.16),
http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf#page=2.

No ‘bonne nouvelle’ from Bonn

Posted by: Frances Lawson

It was never going to be easy, but hopes that intense negotiations in Bonn (UNFCCC) would shift the climate change negotiations onto a smooth track running fast to Paris have been dashed. One of the key tasks – to reduce the unwieldy 90-page negotiating text into something far more manageable – resulted in only about 5% of the countless, duplicative and often obscure options being rationalised. Or in terms of page numbers, negotiators are now working with an 85-page rather than a 90-page document in English. This is not the result that 10 days of intensive effort was intended to deliver. The consensus among negotiators is said to be that progress may well be too slow to make agreement on a new legally binding text likely at COP21 in Paris, even with two further negotiating sessions still to come.

The intention ahead of the next negotiating session in August is to focus on advancing particular workstreams in the negotiating text, differentiating between those elements which need to form part of the Paris Agreement, such as the long-term objectives, commitments and principles, and those of a more operational nature, such as transparency, monitoring and review, which could be finalised in a future Decision of the Conference of the Parties.

Given what is at stake at COP21, not only for François Hollande and his administration, but also for the wider international community, all the stops are likely to pulled out henceforth to ensure that COP21 avoids becoming another Copenhagen. Perhaps what may now emerge in Paris is a ‘semi-outcome’ – a headline agreement containing long-term mitigation and adaptation goals and other broad commitments, but with the mechanics of how these commitments will be delivered – particularly the thorny issue of climate finance – left for another day. This would make COP21 a political success for the French Government, whilst leaving to Moroccan stewardship in 2016 the detail that could so easily derail implementation of those very same commitments.

Click here for a link to the new negotiating text.

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The Moroccan INDC – more than just a mitigation commitment  

Posted by: Frances Lawson

In the fraught world of international climate change negotiations, some things can be more significant than they initially seem. Although only a relatively small country and insignificant in terms of emissions, Morocco’s mitigation pledge ahead of COP21 falls into this category. As host of next year’s climate change conference – the 22nd Conference of the Parties – the approach taken by the Moroccan Government to this year’s negotiations gives a clear insight into the shape of the next.

The Moroccan INDC (intended nationally determined contribution) highlights a key priority for its presidency of the COP, and one of the thorniest issues in the current negotiations – climate finance.  Morocco will unconditionally commit to making a 13% reduction in greenhouse gas emissions by 2030 relative to business-as-usual levels, but it will only go further – up to 32% – if US$35 billion of additional climate funding is provided, and if a legally binding agreement is made. The graph contained within the INDC shows the significance of the conditional and unconditional pledges – with a 13% reduction, Morocco’s emissions will be significantly higher in 2030 than they are today. Given that on current estimates, the world may be heading for a temperature rise of 5 degrees Celsius rather than the 2 degrees target to which the international community is committed, a 13% reduction is clearly going to be an inadequate contribution. A 32% reduction, by contrast, means only a small increase in current emissions which, combined with significant cuts by the world’s developed nations, may enable the 2 degrees target to met.

Many other developing country Parties are yet to publish their mitigation commitments, but if their INDCs follow the Moroccan lead – a likely scenario given the country’s leadership role in 2016 – the fate of the planet could hang not on legal wrangles, political will, technological know-how or economic obstacles, but on demands that one set of countries heavily subsidise another.

The Moroccan INDC can be found here

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