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What are the prospects for a climate
agreement in 2015 and what legal form is it
likely to take?Steve Baines
Global Environmental Governance - 20th November 2015 1
Structure of this Presentation
1. Overview of history of climate change deal-making
2. Review of the process for negotiation in Paris
3. Outline of Major Negotiating Blocks
4. The centrality of INDCs
5. The Draft Agreement – Key Wording Variants by Issue and Article No.
6. Legal Framework – some insights
7. An Emerging Consensus?
8. Beyond Paris – a dynamic process
There is a history to climate change deal-making
1/2
1992 – Rio de Janeiro
Set up UN Framework Convention on Climate Change (UNFCCC)
No binding limits nor enforcement mechanisms
1997 – Kyoto (entered into force 2005)
Fully legally binding but no sanctions on countries which did not meet
commitments (1st commitment period 2008-2012)
“Common but differentiated responsibilities”: Annex 1 commitments 5.2% GHG
reductions
Never met its objectives – US not ratified, Canada withdrawal 2012, Russian delay
Agreed finance transfers, agreed some mechanisms, agreed national reporting with
expert scrutiny
There is a history to climate change deal-making
2/2
2009 – Copenhagen
Protocol - Absence of legally binding treaty
Criticisms: no firm temperature target, no peak emissions timescale
Landmark: All developed countries & biggest developing countries agreed to limit emissions for first time (pledge & review)
First time countries have accepted any type of “internationalisation” of their climate change policies
Ratified at Cancun 2010
2010- Lima
China, India, US all signalled that they would not ratify a binding deal to reduce CO2
Conclusion
…no established agreement template…
Paris – the Agreement mechanism/process
30 Nov- 11 Dec
195 National Governments
Purpose: to agree on a set of principles, rules, measures and institutions equitably to reduce emissions (mitigation) and adapt to expected climate change (adaptation)
To develop a post 2020 Action Plan
Chairs - Laurant Fabius, Foreign Minister & Segolene Royal, Environment Minister: France
Large Plenary Sessions + many smaller meetings “on the side”
Presence of “non-state actors”
Requirement for “consensus” – every country has an effective veto
2 Stage Approval Process – state signing + treaty ratification
Key Policy Architecture issues – centralisation, bindingness
Key Document: The negotiating draft Agreement (5th October 2015)
Who are the major negotiating blocks?
Group of 77/China: a loose collection of developing nations (now over 130). The
Group has emphasised the principle of “common but differentiated
responsibilities”
Alliance of Small Island States: a coalition of over 40 small and low-lying
countries. The Group is pushing for measures to limit warming to 1.5C degrees
European Union
Umbrella Group: a loose coalition of non-EU developed countries (incl. Australia,
Canada, Japan, New Zealand, Russian Federation and the US). The group has
previously been accused of stalling climate change negotiations
Environmental Integrity Group (EIG): a small group of countries with ambitious
climate policies (incl. S Korea, Mexico, Switzerland)
Like Minded Developing Counties (LMDCs)
Intended Nationally Determined Contributions
(Article 3)
“a nationally determined mitigation contribution or commitment”
Bottom Up - the process for INDCs pairs national policy setting in which
countries determine their contributions in the context of their national
priorities, circumstances and capabilities – with a global framework that
drives collective action forward
No standard INDC format
UN Synthesis Report 1 Oct: 146 INDCs rec’d covering 86% of GHG emissions
“The INDCs have the capability of limiting the forecast temperature rise to
around 2.7C degrees by 2100” Christiana Figueros, Exec Secretary UNFCCC
Mitigation (Article 3) - Aim
“Parties aim to reach by X date:
a peaking of GHG emissions/zero net GHG emissions/x % reduction in GHG emissions/global low carbon transformation/global low emission transformation/carbon neutrality/climate neutrality”
Commitments Pre-Conference;
EU: cut domestic emissions by 40% (from 1990 levels) by 2030
US: cut emissions by 26%-28% (from 2005 levels) by 2025
China: cut emissions by unit of GDP by 60-65% (from 2005 levels) by 2030 (peak)
“Developed countries shall…undertake absolute quantified emissions reductions targets. Developing countries shall undertake diversifying enhanced mitigation actions”
Loss & Damage (Article 5)
“Parties recognise the need for international cooperation and solidarity
including through the institutional arrangements as defined in this
agreement”
Finance (Article 6) – who pays & how much?
“Developed countries… should take the lead / Developed countries and
Parties in a position to do so shall/should provide support to assist developing
country Parties with respect to both mitigation and adaption”
“The mobilization of climate finance shall/should be scaled up from $100
billion per year from 2020
Copenhagen – agreed $30 billion “fast start” assistance rising to $100 billion
per annum by 2020 (currently $62 billion committed – OECD)
Brazil, India, China, South Africa & Mexico: “the scale of financing should
increase yearly starting from $100 billion per annum from 2020”
Capacity Building (Article 8)
The capacity building institutional arrangements to be enhanced
or
An international capacity building mechanism shall be established with the
intention of enhancing the planning and implementation of mitigation and
adaption actions
Transparency (Article 9)
“a…unified / robust transparency system covering both action and support”
Further discussion required on:
relationship to existing arrangements
transition period
potential role of technical expert review
Footnote
China: “Developed countries shall…enhance the transparency of their actions through existing reporting and review systems”
The Guardian 2 Nov – “China underreporting coal consumption by up to 17%, data suggests” (c1 billion additional tonnes of CO2 per annum)
Facilitating Implementation & Compliance (Article
11)
“A process/mechanism is established to facilitate implementation of and
promote compliance with provisions of this Agreement”
“The Conference shall…adopt additional…procedures…for the above
mechanism… Those procedures shall define the functions of the
process/mechanism / establish the body that will carry out those functions
and set out measures to facilitate implementation and promote compliance”
China and France agree to 5 year review on progress (2 Nov)
Legal Framework – Insights 1/3 (Boyd, Green &
Stern 2014/15 – GRI)
1. As there is no world government states can choose whether or not to
participate and/or be legally bound
2. International cooperation can help change states’ incentives to
participate…but
3. Domestic factors (political, economic & technical) have a greater influence
Insights 2/3 - Centralization and Bindingness
1. Bindingness is a continuum…
2. A highly centralised & binding policy architecture: positives outweighed by
negatives (Raustiala 2005) – depresses participation and ambition
3. Strongly binding architecture no longer considered the best approach –
national cost/benefit calculations turning in favour of self-interested
mitigation
Insights 3/3 – Nationally self-interested mitigation
Traditional Economic View:
Domestic costs outweigh domestic benefits
Temptation to “free-ride” on emissions reductions
Leading to a “tragedy of the commons”
New challenges to traditional thinking:
“there is a strong prima facie case that the majority of the emissions
reductions needed to decarbonise the global economy can be achieved in
ways that are nationally net-beneficial” (Green 2015)
The barriers to action lie not in macro-economic cost/benefit calculations but
“within the domestic sphere, at the intersection of domestic interests,
institutions and ideas formed in the fossil fuel age” (Green 2015)
French hosts; 4 Pillars to the Agreement
1. A universal agreement limiting emissions to below 1.5C-2C degrees
2. National Commitments (INDPs) to be supplemental to the agreement
3. Finance & Technology: public & private money
4. Agenda for Action – role for local authorities, cities, business and communities
What is likely to be agreed at Paris? – Conjecture
A Consensus Forming?
A new kind of international agreement – a hybrid “containing both ends and means
policy elements, binding and non-binding elements and centralised and
decentralised elements” (Green 2014 p22)
A Treaty?: High level agreement to overall target/aim (presented as degree C rise)
Bindingness: INDCs not to be legally binding (separate document), but possible
binding obligations on process/conduct
Transparency; Centralised and (moderately?) binding rules for transparent
measurement, reporting, accounting, information sharing, verification and review-
to build on existing processes (MRV)
Finance, Technology & Capacity Building (FTCB): Possible outcome – precise sums
and contributions to be decided outside of main agreement
Beyond Paris - A Global long term vision
The Emissions Gap - “Whatever the architecture agreed upon, the level of
ambition ultimately embodied in states’ emissions reduction contributions in
Paris will almost certainly be insufficient to avoid high risks of grave climate
change impacts” (Green 2014)
Review Process - Upward Revision of Commitments over time: with dynamic
mechanisms for review and enhancing ambition
With additional bi-lateral and sectoral agreements between “participants of
the willing” on the side
Significant Future Role for non-state actors – cities, local government,
businesses
Post-Paris, INDCs to be subject to regular (5 year) review and ratcheting up
Key References
Bodansky, D: The Copenhagen Climate Change Conference – a Postmortem
Boyd R, Green F, Stern, N: The Road to Paris and Beyond: GRI 2015
Green N: Nationally self-interested climate change mitigation: GRI 2015
Green N: This Time is Different: GRI 2014
Hale S: The new politics of climate change: why we are failing and how we
will succeed 2010: American Journal of International Law 2010
The Guardian – various
UN Draft Agreement Oct 2015
http://unfccc.int/resource/docs/2015/adp2/eng/8infnot.pdf