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)

Prospects of an Agreement &

Legal Form

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

Issues for discussion:

Will non-binding national contributions be sufficient to meet climate

objectives likely to be agreed at Paris?

To what extent are mitigation measures in the national self-interest of

countries?

What might be the ongoing barriers to undertaking these measures?