More coherence but little substance: The latest COP21 negotiating text

Posted by: Frances Lawson

On Monday, all Parties involved in the UN climate change negotiations will converge on the German city of Bonn for the penultimate negotiating session ahead of the 21st Conference of the Parties in December. Their task – shaping a text that is capable of agreement by Ministers in Paris – has been made slightly easier since the previous session in June, but remains a massive challenge.

The appreciable amount of progress made since June is due not to the Parties themselves, but to the Co-Chairs who facilitate the negotiation sessions and strive to break the deadlock. The Co-Chairs were given a mandate at the end of the June session to carry out additional work on the text. Due to the highly politicised nature of the negotiations, no options proposed by Parties were to be deleted; rather, the Co-Chairs task was a limited one – consolidate the 88-page text by deleting duplicate and otiose options and grouping related provisions together. A work of structure, rather than of substance.

Despite the limited remit, the new text is testament to the invaluable work that the Co-Chairs have undertaken. Although still over 80 pages in length, it has a clear structure that divides the text into three parts as follows:

a)      Part One is called the ‘Draft Agreement’. This is intended to become to core legal agreement in Paris. The new text states that this part includes those proposals which are, by their very nature, appropriate for inclusion in a legally binding text.

b)      Part Two contains those provisions that are considered more suitable for a COP Decision that has legal relevance, but not binding force. Such provisions are essentially those that relate to the modus operandi of the Agreement, for examples, how it will be implemented, interim arrangements pending its entry into force and pre-2020 actions, and provisions likely to change over time.

c)      Part Three of the new text is effectively the home for those provisions that don’t otherwise have one. In other words, those provisions in respect of which the Parties have yet to decide whether they should feature in Part One – the legal text, or Part Two – the COP Decision.

In terms of the content of the text, key observations are below:

Legal form

By virtue of its formulation, the new text gives a clear indication about the legal form of the new agreement. With various options having been under consideration, the likely outcome appears now to be a relatively short legal text with the headline provisions and commitments, accompanied by a lengthy COP Decision containing the detail and mechanics.

Mitigation 

The new text starkly highlights the work that remains in order for the new legal agreement to be credible and effective. As appositely observed by the Co-Chairs, Part Three of the text contains issues that “are central to the Agreement and need to be addressed”. The document contains more text in brackets than unbracketed text, visually illustrating the extent of the task ahead. Some of the bracketed text is pivotal to the agreement’s legal effect. For example, the mitigation section in Part One, undoubtedly the most important section of all, shows that Parties have not yet agreed on whether their efforts should be termed “commitments”, “contributions” or “actions”. From a legal standpoint, “commitments” is clearly to be preferred.

The extent of Parties’ obligations to mitigate climate change is also unresolved, as the provisions at present state that Parties [shall] [should] or [other] either [prepare] [communicate] [implement] [maintain] mitigation efforts. Anything other than “shall” and “implement” will result in a weak agreement in terms of climate change mitigation. Obligations to “prepare” “maintain” and “communicate” are important yet purely procedural, and without an obligation to implement, the ability of the agreement to achieve a substantive outcome and keep global warming below 2 degrees Celsius is doubtful.

Despite constant rhetoric about the need to keep warming below the 2 degrees figure, Parties are not even agreed on whether that target should feature in the legal text as the object of Parties’ mitigation efforts, or whether a looser formulation from the Convention without a quantified target should be included instead. Only if Parties’ mitigation commitments are expressly linked to the 2 degree target will the agreement have any prospect of delivering what the scientific consensus states is necessary.

Adaptation

Much also remains unresolved in respect to adaptation, in particular whether Parties should be obligated to take adaptation actions, or whether they should be voluntary. A further question is whether adaptation actions should relate solely to developed country Parties, rather than those that are classed as developing, and when and how such actions should be communicated. Given the accepted view that climate change impacts the developing world in a disproportionate manner, the universality of adaptation actions is essential.

Finance

The finance section contains two particular points of interest. The first is that the principle of common but differentiated responsibilities and respective capabilities – the principle which represents a firewall between developed and developing country Parties – is in part modified by a reference to Parties’ “evolving capabilities”. This is an encouraging sign of some much-needed pragmatism creeping into the negotiations, an acknowledgement that even if the line between “developed” and “developing” countries cannot be redrawn, the responsibilities and commitments of more advanced developing countries can change in the context of the UNFCCC.

Less encouraging is the continued ambiguity in this section, and in many others, as to who the agreement’s provisions are addressed to. Frequently, the phrase “all Parties in a position to do so” appears before a proposed obligation. Introducing a subjective element whereby Parties can decide to be obligated or not would render the agreement, or those parts thereof, unenforceable and therefore of no legal weight. Given the Parties’ pledge to agree a “legally binding text” in Paris this December, the word “binding” is perhaps the one that needs to be at the very forefront of people’s minds next week in Bonn.

The full negotiating text can be downloaded here

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

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 fourth of a selection of the most contentious issues that remain to be resolved if the new agreement is to be credible and effective.

Legal effect and enforceability

International environmental law (‘IEL’) has generally tended to suffer from the problem of the instruments that comprise it lacking legal effect and enforceability. This is why much of the corpus of IEL is termed ‘soft law’ with more in common with policy declarations than binding law.

Despite the incessant rhetoric about the primacy of tackling climate change from world leaders, such is the resistance among many Parties to taking actions deemed contrary to short/medium-term self-interest that the UNFCCC regime has become characterised by a principle of ‘national determination’ which enables Parties to select the terms on which they make commitments thereunder. Whereas under the Kyoto Protocol, Parties were assigned mitigation commitments and bound to comply with them, the position now is that Parties decide for themselves what commitments they are prepared to make, and outline these in a Nationally Determined Contribution (‘NDC’). It is not envisaged that the adequacy of Parties’ contributions will be independently assessed.

Such a ‘bottom-up’ approach to law-making appears to be without precedent in the international arena. It raises an important question of how, even in the more fluid world of international law, an effective, enforceable legal agreement can emerge when the subjects of that agreement are effectively choosing by what they are bound. In particular, it is difficult to envisage how the ultimate objective in Article 2 of the Convention can be fulfilled when the obligations designed to meet it are determined by the Parties themselves according to their own wishes, needs and circumstances rather than imposed from above. By allowing Parties to self-determine how they participate in the global effort to combat climate change, the UNFCCC regime risks becoming a legal instrument in name rather than in substance.

Furthermore, a key facet of an effective legal agreement is enforceability. The Kyoto Protocol’s compliance system was roundly exposed as hollow when Canada opted out of its legally binding commitments and withdrew without impunity in December 2011. Under the proposals for the Paris Agreement, one option is that the Parties will be legally obligated to maintain a mitigation commitment at all times, in the form of an NDC; however, the content thereof will not form part of the legal architecture. There is no prospect at present of Parties being bound by their mitigation commitments in the way that they were under Kyoto. Should a Party therefore fail to meet its mitigation commitments, no legal consequences will follow.

At the World Summit on Climate and Territories in July 2014, Christiana Figueres, the Executive Secretary of the UNFCCC Secretariat, described the international community as being on a “one-way highway without exits” in terms of tackling climate change. Such a highway requires a tightly drafted, legally enforceable outcome in Paris. Nowhere in the current negotiating text is such an outcome in evidence. This is arguably the greatest challenge of all.

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

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 third of a selection of the most contentious issues that remain to be resolved if the new agreement is to be credible and effective.

Finance

As highlighted in the previous post, the developed/developing country divide is so hotly contested in large part because of the financial implications that accompany it. In simple terms, developed countries are the donors under the UNFCCC regime, whilst developing countries are the recipients. Consequently, a vast proportion of negotiating time is occupied by discussions over how much “climate finance” developed country Parties will commit to providing those in the “developing country” bracket.

The stumbling block is even greater because some developing country Parties have made their mitigation and adaptation commitments contingent upon receipt of sufficient climate finance. Morocco, for example, states in its INDC that its mitigation commitment is contingent upon the country gaining access to new sources of finance, whilst Ethiopia hinges its pledges upon getting international support. Kenya alone estimates its financing needs to 2030 as US$40 billion. With developing countries outnumbering developed country Parties by 3-1, meeting the former’s cumulative financial demands, particularly at a time of widespread austerity, is more than difficult.

An indication of the scale of the challenge is the existing commitments on finance. In 2009 at COP15 in Copenhagen, developed country Parties pledged to provide US$100 billion per year in climate finance from 2020. The fulfilment of that pledge remains uncertain, yet the COP21 negotiations are characterised by demands for funds to be provided over and above what has already been promised. China, for example, is calling for quantified financial targets, with the level of funding increasing year-on-year, and a roadmap to indicate how the quantified targets will be met. The Moroccan Government, which will take over presidency of the Conference of the Parties (COP) after the Paris conference, has also made climate finance one of its key priorities. ‘We’re willing to participate, but you’re going to have to pay for it’ is a message underlying a sizeable portion of the developing country voice around the negotiating table.

The finance debate is not without some convergence. It is beyond contention that developed countries, both as part of their historic responsibility for climate change and for reasons of equity and fairness, have financial obligations towards developing country Parties. Rather, the issues are twofold: first, which developing country Parties should be the recipients of climate finance. Providing funds to support a clean development pathway and adaptation measures are uncontroversial when those funds are destined for the Least Developed Countries (LDCs) and small island states which are particularly vulnerable to climate change impacts. Meeting demands for finance from far wealthier developing countries – China, India, Brazil, South Africa and even Morocco – is more complicated. Given the decision of the UK Government a few years ago to cease overseas aid to India due to its increased affluence, the latter’s demands for climate finance – arguably indistinguishable in essence from “overseas aid” are problematic, both from a practical and from a principled standpoint. At what point does a developing country cease to be entitled to climate finance from developed country Parties is an interesting question that would add clarity and legal certainty to the Paris Agreement, but which is unlikely to feature therein.

The second issue is just how much finance can, and should, be provided. Given the challenge for the developed country Parties of finding US$100 billion per year from 2020, developing country demands for financing significantly in excess of that amount are both politically unpalatable and almost impossible to meet. Hence the focus of developed country Parties on identifying “new and innovative” sources of finance, code for private sector involvement. Nevertheless, China in its INDC has specified that most of the annual $100 billion should come from the public sector, so even diversifying the sources of finance looks to be divisive.

A linked concern is that climate finance needs could increase exponentially. An issue which is thorny in 2015 could plausibly become toxic in negotiations to come. This is particularly so because the longer it takes to get global warming under control, the greater climate impacts will be. As adaptation needs increase, so do the associated costs and therefore the financing requirements. The international community may well be faced with a heavier tab in the future for its reticence to risk prejudicing ‘the economy’ now.

COP21 looks set, therefore, to involve a great deal of argument over how much money developed country Parties will commit to providing, when, to whom and by what means. The figures and timescales will probably be left out of the Agreement to be fought over another day, along with detailed plans for transparent accounting and effective monitoring to ensure that the funds are fully deployed in effective climate change mitigation and adaptation. With finance occupying an ever-greater place in the negotiations, there is also a danger of the UNFCCC becoming the new ‘gravy train’ – a means for developing countries to secure additional funds rather than primarily as a vehicle to safeguard global ecological integrity. From a legal perspective, meanwhile, the importance of finance to the fulfilment of the Convention means that part of the Agreement will require particularly careful wording, and effective means of implementation. So much of the international community’s commitments, and their efficacy, will stand or fall on the extent to which the monetary aspect thereof is drafted in Paris.

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