Obstacles on the road to an effective legal agreement in Paris – Part Two

Posted by: Frances Lawson

With the submission of Parties’ mitigation commitments gathering pace, the obstacles to an effective legal agreement at the 21st Conference of the Parties are becoming ever clearer. Below is the second of a selection of the most contentious issues that remain to be resolved if the new agreement is to be credible and effective.


The concept of differentiation, a succinct way of expressing the ‘principle of common but differentiated responsibilities and respective capabilities’ (CBDR&RC), is one of the two most highly charged and sensitive issues in the climate change negotiations. It refers to one of the original, defining features of the climate change regime. The underlying rationale is simple, and widely accepted – those countries that are defined as ‘developed’ should bear the lion’s share of the responsibilities under the Convention because they have contributed most to global emissions to date by industrialising first (the principle of historic responsibility).

The distinction matters. Under the differentiation principle, developed countries should:

1. Bear the primary responsibility for mitigating climate change by reducing their greenhouse gas emissions;
2. Provide support to enable those countries defined as ‘developing’ to transition onto a low-carbon pathway;
3. Provide support to enable those ‘developing’ countries to adapt to the impacts of climate change.

‘Developing’ countries for their part are encouraged to undertake mitigation and adaptation actions, but there is no obligation to do so, and their actions are contingent upon developed country support. The Convention is therefore characterised by a stark dividing line that separates the roles, rights and responsibilities of developed and developing countries.

Herein lies the problem –when the Convention was drawn up, the list of ‘developed’ countries was determined largely according to membership of the OECD (Organisation for Economic Cooperation and Development). Almost all countries not on that list were bundled into the ‘developing country’ category. This has left a lot of anomalies – out of the 194 Parties to the Convention, only 43 are in the ‘developed’ country category. The overwhelming majority – more than 150 – are defined as ‘developing’. Singapore is a developing country under the Convention, despite being a highly prosperous nation. So are the United Arab Emirates, Qatar, Saudi Arabia, South Korea and Brazil, while Belarus and the Ukraine – arguably economically poorer – are ‘developed’. Most contentious of all, China remains a developing country, despite its GDP now outstripping that of many ‘developed’ countries.

The ensuing difficulties are obvious – smaller ‘developed’ nations such as Estonia or Greece wonder why they are expected under the Convention to provide support (particularly finance) to richer compatriots such as China, Brazil or Qatar, and feel equally aggrieved that they are pressurised to reduce emissions whilst these other countries with a far more significant emissions portfolio are allowed to continue to increase them for the next few decades.

Why indeed? In addition to errors of judgment in the initial designation of ‘developed’ versus ‘developing’ countries, the draftsmen of the 1992 Convention did not anticipate the changing of geopolitical realities that has occurred over the past 23 years. There is therefore no mechanism in the Convention for a ‘redrawing of lines’. Developing countries can of course opt to change their categorisation and become ‘developed’; given the attendant responsibilities and financial obligations, however, little wonder that almost none of them do.

With so much at stake in the ‘developed’ versus ‘developing’ country distinction, it is one of the most closely guarded aspects of the regime. Any mention of altering the status quo is met by fierce opposition from those ‘developing’ countries with the most to lose by being redefined as ‘developed’ – particularly China and Brazil. Yet with the world’s emissions increasingly coming from those on the ‘developing’ side of the dividing line, and with those countries displaying levels of wealth and economic growth well in excess of the ‘developed’ countries that are meant to support them, maintaining the status quo is becoming increasingly untenable.

More importantly, from a climate change perspective, the current differentiation under which less than one-third of Parties to the Convention are required to reduce their net emissions, is highly unlikely to deliver the reductions that the science tells us we need to limit warming to below 2 degrees Celsius.

You can follow the blog and keep up-to-date with new items as they are posted by following Fran on Twitter @franlawson79



Obstacles on the road to an effective legal agreement in Paris – Part One

Posted by: Frances Lawson

With the submission of Parties’ mitigation commitments gathering pace, the obstacles to an effective legal agreement at the 21st Conference of the Parties are becoming ever clearer. Below is the first of a selection of the contentious issues that remain to be resolved if the new agreement is to be credible and effective.


Since the conception of the international climate change regime, the baseline against which greenhouse gas emissions reductions in developed countries have generally been measured is 1990. Indeed, this was the agreed baseline year for most Parties to the Kyoto Protocol.

Over time, this baseline consensus has been eroded with an increasing number of countries opting for a different, later, baseline year when emissions were higher than in 1990. This enables Parties to appear to being making significant emissions reductions when, relative to 1990 levels, they are far less impressive. The United States was one of the first Parties to opt for a 2005 baseline, but the current suite of INDCs shows that an increasing number of others are following suit. Canada’s baseline year is 2005, while Japan has opted for 2013 as a baseline year, with 2005 levels in brackets. Even New Zealand’s INDC is based on the 2005 baseline, chosen for “ease of comparability with other countries” – a flimsy justification given that the EU’s INDC, covering 28 Parties, remains rooted to 1990 as the baseline year. Norway, Liechtenstein and Switzerland have also stayed loyal to the 1990 baseline in their INDCs.

The problem with this 1990-2005 baseline year disparity is threefold. First, it gives a misleading impression about the extent of developed country Parties’ emissions reductions, and particularly, about the extent of those emissions reductions post-Kyoto. Secondly, it makes it impossible to evaluate the sufficiency of developed country Parties’ commitments relative to what the scientific consensus tells us is required. Thirdly, it hinders the comparability of developed country Parties contributions to the Paris Agreement, contrary to what the New Zealand INDC claims.

Only with the use of a consistent baseline year can the Paris Agreement hope to be effective as a legal instrument. Only if that baseline year is 1990 can the Paris Agreement enable developed country Parties’ ambition levels to be evaluated relative both to established science, to each other and to their legal commitments under the Kyoto Protocol.

Unfortunately, the increasing variety of baseline years is a reflection of the current nature of the climate change negotiations. Despite the positive rhetoric about the primacy of tackling climate change, such is the resistance among many Parties to taking actions deemed contrary to short/medium-term “national interest” that the UNFCC regime is now characterised by a “laissez-faire” attitude which enables Parties to select the terms on which they make commitments thereunder. Such an attitude is just one of numerous obstacles that lines the road to a legally effective, and ecologically sufficient, outcome in Paris.
The second obstacle will be outlined in next week’s post.

The Parties mitigation commitments (INDCs) can be found here




China increases its ambition for COP21 – but will it be enough?

Posted by: Fran Lawson

In one of the most anticipated moments ahead of the 21st Conference of the Parties, China, the world’s single largest emitter of greenhouse gases, finally showed its hand to the world by delivering its proposed contribution to the Paris Agreement in person to the French Government on 30th June.

The 36-page Intended Nationally Determined Contribution (INDC) has received high praise from other key players in COP21, particularly from the French hosts, representing as it does a ‘step up’ from the US-China Joint Announcement on Climate Change and Clean Energy Cooperation in November 2014. That announcement itself attracted widespread acclaim as an ‘historic’ step forward in the international climate change effort, largely due to both countries comprising not only the world’s most significant emitters, but also the most recalcitrant participants in the UN climate change negotiations.

The Chinese INDC maintains two of the key pledges made in the Joint Announcement – for a peaking of emissions by 2030, with best efforts to peak sooner if possible, together with a 20% contribution of renewables to the country’s energy mix by the same date. The particular praise being lavished by many political leaders and commentators upon the Chinese INDC relates, however, to two new pledges therein. The first is for a higher decarbonisation target of a 60-65% reduction in CO2 emissions per unit of GDP by 2030 relative to the 2005 level – in other words, the Chinese economy will continue to grow whilst emitting far less than would be the case in a ‘business-as-usual’ scenario. This is a significant increase on the 40-45% reduction that China pledged in 2009. The second new pledge is that China will increase the extent of its forest cover by 4.5 billion cubic metres by 2030 relative to the 2005 level.

These targets seem achievable – the INDC provides extensive detail on the Chinese mitigation effort to date. In 2014, GHG emissions per unit of GDP were 33.8% lower than the 2005 level; the share of renewables in the Chinese energy mix was 11.2% and the total forested area was nearly 2.2 billion cubic metres. The Chinese INDC commitments therefore represent what the country can feasibly achieve by continuing its existing efforts it in a similar manner.

The problem, from both a climate change perspective and from a legal angle in terms of fulfilling the objective of the Convention, is this – under the INDC, Chinese emissions in 2030 are still going to be considerably higher than they are at present. In other words, the world’s single largest emitter of greenhouse gas emissions is going to continue to emit more and more greenhouse gases, year on year, for the next fifteen years. Even without entering into complicated mathematical calculations, it seems impossible that such emissions, together with rising emissions from all of the other ‘developing’ countries as defined by the Convention, can be sufficiently compensated by reducing emissions from the relatively few ‘developed’ countries, or by extra forest cover.

The challenge facing the international community is not to ‘engage significantly’ in reducing greenhouse gas emissions relative to what they would otherwise be. If the challenge was thus, no doubt we could all pat ourselves on the back and feel that we are all doing rather well. The science on climate change is clear, precise and unequivocal – the international community has been told what the maximum level of warming is in order for dangerous climate change to be avoided. The international community has committed, under the Convention, to undertake all efforts to restrict warming to that level. The science has also told us what the maximum level of atmospheric concentrations of greenhouse gases is to keep warming below dangerous levels. Yet international efforts continue to dance around these unmovable, but uncomfortable, scientific realities. Instead of working towards an international legal regime in which we know whether or not we are in line with the science that world leaders all accept and agree on, we are in the process of designing one which enables Parties to ‘do their best’, without even assessing the adequacy of those efforts in relation to the objective of the Convention or the scientific red lines.

As demonstrated by its INDC, there is no doubt that China is committed to developing a greener, more ‘climate-friendly’ economy than it would otherwise have. It is a country that has already made considerable efforts, and its intention is clearly to continue those efforts over the next fifteen years. This, of course, is welcome and deserves recognition. Let’s not pretend, however, that it is going to be enough to respect the scientific red lines and meet the objective of the Convention. That is going to require something far more radical from the world’s single largest emitter. And indeed, from us all.

The Chinese INDC (including English translation), can be found here



Widening participation and legal efficacy under the UNFCCC

Posted by: Frances Lawson

Since 1992, the legal climate change regime under the UNFCCC has had a straightforward, but narrow, structure – national governments are the sole Parties to the Convention, all legal obligations are placed upon them, all actions are to be taken by them, and the benefits – such as finance and other forms of support – are available to them, and them alone. The idea implicit in this structure is that States then pass on obligations, actions and support systems to non-state actors; businesses, local/regional government and NGOs.

Now, however, that structure is undergoing a radical change. Non-state actors, no longer satisfied with being kept on the fringe of the international climate change regime, have started to demand a more formal role, to have their contributions and their support needs recognised and covered by the legal regime. Encouraged by the French Presidency of the COP21, hundreds of such non-State actors have converged this week in Lyon for the first World Summit on Climate and Territories (WSCT) to draw up their priority wish list for the Paris Agreement. A platform – NAZCA – has been created on the UNFCCC website to enable non-state actors to submit their contributions and to have them evaluated.

From a climate change perspective, this is a welcome expansion of effort, action and engagement. Tackling climate change successfully requires the involvement of as many actors at different levels as possible, and indeed of us all as citizens. It is perhaps unrealistic, idealistic, to expect States to deliver fully on mobilising regional, sub-regional and local action. Indeed, it presupposes that States know best how to go about doing so when in fact, creativity and innovation often grow from the ground, independent of central government.

From a legal angle, however, the widening of participation in the climate change regime is not without difficulty. To be effective in a legal sense, the climate change regime needs to be robust and reliable. We need to know that the obligations on emissions reductions are being met. We need to be able to monitor, evaluate Parties’ progress in meeting their obligations. We need to have confidence that the figures, the data on emissions reductions are accurate. Otherwise, the very purpose of the legal regime – protecting the climate from dangerous anthropogenic climate change – is unlikely to be fulfilled. Compliance action to uphold those legal obligations also becomes impossible to take.

Many non-state actors are now calling for official recognition of their greenhouse gas emissions reductions, but systems do not yet exist to avoid the risk of these being double-counted with those reported by the relevant national government. Indeed, the system of monitoring, reporting and verification (MRV) to be used by Parties remains a major issue yet to be resolved ahead of Paris. Currently, different parties measure different greenhouse gases and have their own specific ways of calculating those emissions. Adding into the equation reductions proclaimed by non-state actors, and an already complex situation becomes impossibly difficult. And in legal terms, utterly unworkable.

The World Summit is therefore a major step forward in expanding involvement in the climate change effort in a way that will benefit and enhance the action being taken on the ground. Legally speaking, there is little issue with the Paris Agreement allowing non-state actors to access support for climate change initiatives, nor with having their efforts acknowledged and appreciated in a general sense. However, until Parties can agree on an effective, robust MRV system for national greenhouse gases under the UNFCCC, formally taking account of non-state actor emissions reductions risks seriously undermining the very regime that those efforts are meant to support.

You can follow the blog and keep up-to-date with new items as they are posted by following Fran on Twitter @franlawson79