By Vositha Wijenayake and Vidya Nathaniel 

Edited by Navam Niles

Introduction

The 21^st Session of Conference of Parties to the United Nations Framework Convention on Climate Change (UNFCCC), scheduled for December 2015, should set the stage for a new climate change agreement. Ideally, this COP will create a binding universal agreement on climate change with tangible targets affecting all the parties.

The structure of the 2015 Agreement^[1] : Achieving Objectives

The UNFCCC calls for multilateral, collective action to address climate change. The principles of this Agreement call for action by states to be based on historical responsibility, equity and common but differentiated responsibilities. This requires developed countries to demonstrate leadership in the global effort, reflecting the responsibility for the bulk of historical emissions.

The UNFCCC outlines special consideration for the circumstances of developing country Parties. In particular, developing parties facing severe adverse effects of climate change, and developing parties that would have to bear a disproportionate or abnormal burden due to climate change.

The Ad-Hoc Working Group on the Durban Platform for Enhanced Action (ADP) negotiations should result in a future agreement based on these UNFCCC principles.

Therefore, the 2015 Agreement needs to:

–        Address specific commitments for Annex I Parties in the form of economy –wide emissions reduction targets, with a trajectory assessing both 2020 and 2050 pathways.

–        Include clear and specific commitments for developed countries to support adaptation and mitigation while recognizing that adaptation needs are strongly correlated to mitigation action.

–        Include strong text on climate finance which will have equal amounts allocated for mitigation and adaptation.

–        Include and highlight the loss and damage mechanism separately from that of the adaptation mechanism.

–        Include a robust MRV process that includes compliance and accountability, with the inclusion of stakeholder participation^[2]. Civil societies and other stakeholders can play a key role in the MRV process, and hold the Parties accountable to the commitments made in the 2015 Agreement.

 Legal Structure of the UNFCCC Agreements^[3]

The structure of the UNFCCC is a single undertaking with the option of adopting additional protocols.

The UNFCCC is a treaty; therefore, binding under international law. The target set for ‘emission’ is characterized as an ‘aim’ rather than a commitment; therefore, it is not legally binding. There are other features of the UNFCCC, however, that are legally binding. These include the commitments on reporting, formulating, and updating national climate change measures.

The process envisioned in these Agreements is a ‘bottom-up’ process. States report on national programs that help them mitigate and adapt to climate change. This reports are then reviewed internationally.

Other Legal structures for climate change Agreements^[4]

• Kyoto Type Approach

The structure of the UNFCCC differs from the Kyoto Protocol, in that the Kyoto Protocol is a legal agreement with a unitary structure, without any optional elements. This Protocol establishes legally binding limits on national greenhouse gas emissions of the Annex 1 parties.

The Protocol was implemented through a ‘top-down’ process. Commitments were determined in advance through international agreements and thereafter the substance of each country’s emission target was defined through international negotiations; not through national deliberations.

The UNFCCC calls for general commitments that are difficult to evaluate for compliance. Making agreements as stringent as the Kyoto Protocol, however, may not be optimal because its targets now apply to less than a quarter of global greenhouse gas emissions, and compliance is poor. For instance, Canada quit the agreement rather than face the consequences for non-compliance.

• The Legal Structure of the Cancun Agreements

The Cancun Agreements applies the ‘bottom-up’ pledging process where the national pledges represent political rather than legal commitments. These pledges were defined through a national process (instead of an international process) that each state’s sovereignty.

Countries chose to adopt absolute emission targets, index efficiency targets or adopt relevant policies and measures.

The voluntary nature of these pledges allows for broader coalitions but these forms of Agreements lack ambition. Further, it is too early to assess their compliance.

It may be possible to encapsulate the structure of the Cancun Agreement with legal force because legal instruments generally signal a greater level of commitment by states than political agreements. This legal architecture’s flexibility increases likelihood of compliance.

An UNFCCC amendment, protocol or COP decision could also provide legal force.

• Multi – Track Approach

This type of approach allows states to choose a preferential structure. The Agreement will consist of different annexes that states could choose. Such an approach emphasizes state sovereignty and flexibility, especially within country blocs. These advantages, however, come at the cost of uniformity. To get around this problems, countries will need a mechanism that harmonizes their legal commitments to facilitate the MRV process of the new Agreement. To achieve this, states could form a core agreement addressing matters such as institutional arrangements, metrics and methodologies for comparing commitments.

Suggested Structures by Parties^[5]

Several countries and groups have proposed a legally binding 2015 Agreement, many arguing that it is the only way to ensure tangible action on climate change. Such parties include the Association of Latin America and the Caribbean (AILAC)^[6], Canada^[7], Environmental Integrity Group (EIG)^[8], the European Union^[9], Mexico^[10] and Russia^[11].

Specific suggestions on implementing a legally binding instrument include:

1. EIG – the legally binding instrument should contain enduring elements of the 2015 Agreement, COP decisions containing dynamic and technical elements, and the nationally determined contributions for the period from 2020.
2. Russia – the legally binding instrument is to set commitments for developed and developing nations. The substance of the climate actions taken by developed and developing nations may differ, but they should be enshrined in a single international legal instrument. Further, the instrument should agree on the methodology for quantification and comparison of the countries efforts.
3. AILAC- all the components of the legally binding agreement should be granted equal relevance and should have the same legal nature. While the Agreement will be legally binding, it should also allow for sufficient flexibility, so as to secure universal participation, allow for diversity and differentiation between types of contribution and allow countries to increase ambition over time.

The proposal by AILAC for the architecture of the Agreement is based on two fundamental principles:

–        No backsliding: no country can withdraw its contribution nor make a less ambitious one than its previous commitments (including those under existing contributions under the Convention and the Kyoto Protocol).

–        Incremental increases: the country contributions should increase in ambition every time the contribution period expires until the Convention’s and the 2015 Agreement’s objectives are reached.

AILAC submissions states each of the main substantive components (mitigation, adaptation and means of implementation) should have a long-term goal for proper implementation.

In addition, the Agreement should encourage domestic action through incentives and through a robust support structure. Accordingly, each country is to commit to undertake – within its national context – individual or joint actions, or both. The respective countries will be legally bound to comply with the contributions agreed. The flexible nature of the legally binding Agreement will bind countries to their contributions without having to ratify contribution documents of other countries.

Other proposals for the legal architecture of the Agreement:

1. The Africa Group^[12]: A ‘non-binding, principle based reference framework that reflects relative fair efforts by Parties’.
2. Least Developed Countries (LDCs)^[13] : The 2015 Agreement to has to coexist with the Kyoto Protocol and contain all the elements of the Durban Platform (i.e. adaptation, mitigation, loss and damage, finance, technology, MRV and compliance, and capacity building), along with any other elements which may come under consideration.

Some countries propose for the legal architecture to be determined based on the status of the countries during negotiations:

1. China ^[14]: The legal form to be determined by the substance as a result of negotiations.
2. Japan^[15]: The legal nature of the 2015 Agreement needs to be reflected taking into consideration universal participation and encouragement of ambitious actions.

On 11th November, the Ad Hoc Working Group on the Durban Platform for Enhanced Action released a ‘Non paper on elements for a draft negotiating text’. This text sought to provide options and mechanisms through which Parties could agree to act in terms of some core objectives of the Convention, namely:

–        Mitigation,

–        Adaptation and loss and damage,

–        Cooperation and support for implementation,

–        Finance,

–        Technology development and transfer,

–        Capacity Building,

–        Transparency of action and support,

–        Time frames and process related to commitments/contributions,

–        Facilitating implementation and compliance, and

–        Procedural and institutional provisions.

This non paper, as well as the draft decision on the Durban Platform^[16], will form part of the agenda for the negotiations at the seventh part of the second session of the Ad Hoc Working Group on the Durban Platform for Enhanced Action, to be held in Lima, Peru in December 2014, in order to collectively construct the content and shape of the 2015 Agreement.

Lessons learned from the Bali Road Map negotiations for the 2015 Agreement^[17]:

The Bali Road Map demonstrated that unilateral actions on mitigation and means of implementation are not effective, adequate or fair. Therefore they will not keep the world safe or enable developing countries to respond to climate change.  Therefore, specific commitments for Parties are necessary within the same agreement. This must also reflect the differentiation provided for by the UNFCCC.

In order to achieve this, the discussion on Intended Nationally Determined Contributions (INDCs) will play a key role in achieving the differentiated commitments, and uphold the principle of common but differentiated responsibilities and respective capabilities.

The Draft Text on ADP 2-7 agenda item 3 – Implementation of all the elements of decision 1/CP.17 provided a broader understanding of INDCS.

Parties are required to determine the scope of the intended nationally determined contributions, in the context of Article 2 of the Convention, in line with Article 2 of the Convention.^[18] In order to achieve the necessary aggregate level of ambition outlined the Intergovernmental panel on Climate Change’s Fifth Assessment Report, nationally determined contributions^[19] would require:

(a)   The implementation of contributions by each Party beyond any commitment or action currently undertaken by it under the Convention or its Kyoto Protocol; and

(b)   Mobilization of increasing levels of financial, technological and capacity-building support for developing country Parties, in particular those most vulnerable to the adverse effects of climate change.

Parties will be able to communicate intended nationally determined contributions by providing information on the type of contribution, time frames, scope and coverage, expected outcome and, if relevant, any references methodologies and accounting approaches.^[20]

The decision taken in relation to intended nationally determined contributions is to be without prejudice to the legal nature of the contributions of Parties or to the content of the protocol, another legal instrument or agreed outcome with legal force. ^[21]

Achieving the Right Balance

The flexibility of a legally binding agreement is often a contentious issue. Firm requirements that standardize parties’ commitments to the agreement are possible. But this could result in parties disagreeing with the requirements.

Flexibility to parties could result in great willingness amongst negotiators to agree to this approach and adopt the provisions. This may increase the risk, however, of parties minimizing efforts to comply with the provisions of the Agreement. It is necessary to adopt a balance where countries are encouraged to ratify and comply with the provisions of the Treaty.

Jean Galbraith, for instances argues that certain states display certain ‘built-in’ biases when negotiating and ratifying treaties.^[22] It is believed that states are more likely to implement commitments, even if flexible, where the prominence of the commitments are emphasized. ^[23]

Galbraith also referred to the use of traditional tools such as economic incentives. Another mechanism, discussed by the Foundation for International Environmental Law and Development (FIELD), is a special list, annex or optional protocol for countries working to ensure above-adequate ‘nationally determined contributions’ (NDCs). This would be additional to the main agreement and open to all countries. ^[24]

It will be interesting to watch the assessment of these suggestions, and the country reactions to the draft text tabled by the co-chairs in Lima 2014. The process is country driven and the political will and ambition countries are willing to provide will be evident at COP20. That political will determine the success of a legally binding text in Paris 2015.

Notes 

About The Authors:

Vositha Wijenayake is the Policy and Advocacy Co-ordinator of CANSA and, Regional Facilitator for Asia for the Southern Voices Programme. She is a lawyer by profession and has an LLM from University College London. She specialises in International Environmental Law and Human Rights Law. She has been tracking the UNFCCC negotiations since 2009 with a legal and gender focus.

Vidya Nathaniel, , Attorney-at-Law,  LLB (Hons), is a volunteer at SLYCAN. While she initially planned to pursue a career in corporate law, she has now developed a strong interest in research within the development framework and hopes to engage in more activities that would influence and bring about a positive change in society. She has only been on board SLYCAN since October 2013, and has thus far worked on broad areas dealing with matters of international law and more specific areas national measures implemented to address climate change.

Navam Niles works as a Research Associate at SLYCAN, focusing on energy security and the politics concerning global environmental problems. His core research interests also include Public International Law, International Development, Foreign Policy Analysis, and International Security. In addition, he is a lecturer at the Royal Institute of Colombo, teaching subjects pertaining to Politics, International Relations and Development Studies.