It’s all in the brackets – the final COP21 negotiating text (Part 2)

December 1, 2015

Posted by: Frances Lawson

The final text for the Paris Conference was published at 23:30 at the very end of the last negotiating session. Spread over 59 pages, the text is divided into three parts: the first 31 pages set out the options for the Draft Agreement, the second 20 pages are devoted to what is called ‘the Draft Decision on workstream 1’, and the final eight pages to the ‘Draft Decision on workstream 2’. This next post follows on from the previous one by simplifying and explaining the content and purpose of the remainder of the proposed legal agreement, and the main issues therein to be resolved here in Paris.

Article 4 – Adaptation

Recent years have seen an increased focus on adaptation which has tended to be regarded as mitigation’s “poor relation”, much to the frustration of particularly vulnerable developing countries. The Paris legal text is meant to mark a redressing of the balance, with much talk in recent months of a “global goal” on adaptation as an eye-catching headline to reflect the added momentum. Although Article 4 of the final text contains plenty of content, the substance thereof is very weak. Most of the proposed text is statements of principle more suited to recitals than to core parts of the agreement. The proposals for the global goal do not aspire further than the enhancement of capacity and resilience, and a corresponding reduction in vulnerability; nevertheless, it is described as the “basis” for assessing the adequacy of developed country financial support. In short, there is a startling lack of anything that can be quantified, measured or qualitatively evaluated throughout all of the adaptation provisions.

Even the commitment to undertake a national adaptation planning process is riddled with qualifications so that the obligation is subject to Parties’ own “circumstances and priorities” and the requirements for such a plan are expressed as an optional list. Moreover, the plans themselves will not necessarily be required to fit with the National Adaptation Plans that have already been established several years ago under the Cancun Adaptation Framework. Rather than consolidating what already exists, there is a real risk of repetition both of what has already been agreed under another part of the UNFCCC machinery, and of the creation of new and additional “mechanisms” and “plans”.

The other key adaptation component is for Parties to submit an “adaptation communication” but here, one of the options is for this to be something that Parties “may” do, making it far less than an actual commitment.

Article 5 – loss and damage

Loss and damage is a relatively new addition to the remit of the UNFCCC. Designed to ensure that countries affected by physical damage and monetary losses due to climate change-related weather events receive financial compensation, it covers scenarios where adaptation efforts prove inadequate. With a large number of Parties opposed to any L&D mechanism within the Agreement, there is a high chance that it will not feature in the adopted text.

Article 6 – Finance

This Article is most remarkable for the absence of unbracketed text. When it comes to who provides money to whom, how much and for what, everything is contentious. It is also the Article in which the ongoing definitional debate about who is a Developed Country Party, who is still developing, who is somewhere in-between and what can and should be expected of each, finds it fullest expression, illustrated below in one part of one of the two options on the negotiating table:

4. [[Developed country Parties should take the lead and][Developed country Parties[Parties with economies in transition] [and Parties [in a position][with capacity] to do so]] [All Parties [in a position][with capacity] to do so] [shall][should][other] provide support to assist developing country Parties with respect to both mitigation and adaptation [and others in a position to do so should complement such efforts].]

Such language effectively allows many Parties a considerable margin to “self-define” as “still developing” and or “without the capacity to do so” even when GDP and other indicators would suggest otherwise. The vagueness creates a legal hollowness which makes the whole provision rather redundant.

One positive proposal in the finance provision is the first part of Option 1, which, if adopted, will require all financial flows to promote and be consistent with the transition to low-carbon economies. Given the vast sums still provided to prop up the fossil fuel industry, this is a proposal that thoroughly deserves inclusion, and which is specific enough to add value.

Article 9 – Transparency

This Article is a classic example of how the principle of “common but differentiated responsibilities” is being stretched far beyond its original purpose; one of the four options on transparency provides for developing country parties to be subject to different transparency requirements that developed country parties, as if their economic status renders them less capable of being transparent as to the actions they are undertaking. As highlighted in the previous post, this is one of the most important parts of the Agreement if it is to be effective, and the need for clear rules common to all is abundantly obvious.

Article 10 – the Global Stocktake

This Article is a classic example of how requests for finance have infiltrated even seemingly innocuous parts of the Agreement. The idea of the Global Stocktake is for there to be a regular, five-year, review of the adequacy of Parties’ commitments, particularly in view of the 2 degrees target. One option on the table provides for developing countries’ participation in the stocktaking exercise to be dependent on the provision of finance.

Article 11 – Compliance

A legal agreement is nothing if it is not enforceable. A compliance mechanism is therefore a vital part of any binding agreement. Article 11, however, exemplifies the dissonance between Parties’ public commitments to a “legally binding” instrument, and what they have actually put on the table to this effect. There is quite simply nothing “binding” about any of the options on the table for the Agreement’s compliance mechanism. Whichever of the options is adopted, the effect is largely the same – “enforcement” of developed country Parties’ commitments means “making recommendations” for how to implement better, whilst developing country Parties look set to get off even more lightly with a purely “facilitative” approach to the fulfilment of their obligations. The message is clear – the compliance system is to be non-adversarial, non-punitive and non-judicial. Where is the “bindingness” in the “binding” legal instrument, one may well ask. Facilitation should, of course, be the first step in an Agreement of this type, but should that fail, teeth are required so that commitments can bite. Otherwise, there is nothing other than mild embarrassment and peer pressure standing between Parties and a change of heart regarding their commitments – neither of which hindered Canada spectacularly going back on its obligations under the Kyoto Protocol.

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