It’s all in the brackets – the final COP21 negotiating text (Part 1)

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 post and the two that follow will simplify and explain the content and purpose of each part of the text, and the main issues therein to be resolved in Paris.

The Draft Agreement

The Draft Agreement is the part of the text which is meant to meet the criterion of “a legally binding outcome” which the Parties have repeatedly stated is the desired outcome. Comprised of 26 Articles, the Agreement sets down Parties’ legal commitments on mitigation, adaptation and finance, as well as defining key terms for the interpretation of those commitments.

Each Article contains between two and four options for the Parties to negotiate upon in Paris. As if that was not enough, almost all of the options contain “bracketed text”, or in other words, options within the options. The bracketed text can itself be split into two main types: that which is important to the legal effect and interpretation of the Agreement, and that which is purely, or largely, political. Much of the bracketed text falls into the latter category.

An example of this can be seen as follows: in the fourth recital of the Draft Agreement, the phrase “developing country Parties” is preceded by the following bracketed text:

[Taking account of] versus [Taking full account of]
[the particular vulnerabilities and specific needs of]
[particularly vulnerable]
[urgent and immediate needs and special circumstances of]

Legally, the different bracketed text is of limited importance – the principle of the need to take account of particularly vulnerable developing country Parties is clear. The adjective “full” arguably does little to alter the legal effect of the obligation, particularly given that this is simply a recital to the Draft Agreement, and therefore of value only as an interpretative aid.

Similarly, the sixth recital reads as follows:

Emphasizing the need for [universal and] sustained action by all…

Given the existence of the words “by all”, the bracketed text of “universal” is entirely otiose. Nevertheless, it remains in the text to be debated in Paris, occupying valuable negotiating space which could be used to determine matters with real legal and political importance.

The important detail from a legal perspective starts in Article 1 ‘Definitions’. Bracketed text is placed around the term “emissions reductions” indicating a surprising uncertainty as to the definition of what a fundamental element of the climate regime actually is to be taken to mean. Similar uncertainty hovers over the term “climate finance”, and also over the meaning “developed” and “developing country Party”. Rather than retain the definitions in the Convention, there is a proposal for these terms to be given their own, alternative definition under the Paris Agreement. Of the many battles to be fought over at COP21, this is likely to be one of the biggest simply because status as a developed or developing country determines whether one primarily gives or receives money.

Article 2 is entitled “Purpose”, the first line of which reveals an important fault-line as to whether the aim of the Agreement is to fulfil the overarching objective of the Convention, ie the stabilisation of greenhouse gas concentrations at a level that prevents dangerous anthropogenic interference with the climate system, or whether the aim is just to contribute to this endeavour. This fault-line therefore relates to the extent of change that the Convention is meant to bring about. Article 2 also highlights the ongoing debate about the maximum level of warming that the Agreement is working towards. The options for what is termed ‘the global temperature goal’ are to hold the increase in the global average temperature:

[below 2 degrees]
[below 1.5 degrees]
[well below 2 degrees]
[below 2 degrees or 1.5 degrees Celsius]
[below 1.5 degrees or 2 degrees Celsius] – apparently the order is important
[as far below 2 degrees Celsius as possible].

Legally, the most effective wording would be to phrase the obligation to limit warming in terms of a clearly expressed level – either 1.5 or 2 degrees Celsius – to enable the obligation to have enforceability, with a subsequent paragraph stating that Parties shall endeavour to keep the warming as far below this maximum as possible.

Throughout the text, the language used to express the nature of Parties’ obligations is in brackets. Despite the consensus that the Agreement should have legally binding force, such consensus does not extend to whether commitments should be expressed as such, or rather as contributions, nor to whether Parties [shall], [should] or [other] undertake them. A rather circular debate therefore seems to be occurring over whether the language in a legally binding agreement should be consistent with it having binding character. The mitigation actions referred to in Articles 2 and 4 additionally contain a bracket around the word [intended] which, if it remains inside the final text, will give Parties an easy way to renege on the pledges therein on the basis that they were not final and definitive. Another contention is whether Parties’ mitigation actions are limited to the Nationally Determined Mitigation [Contribution] [Commitment], now referred to as the ‘NMDCs’, or whether they are to extend wider than this.

Further detail on ‘the global temperature goal’ is found in Article 4, probably the most important and contentious Article of all, which sets out both collective and individual mitigation actions. In terms of the collective effort, there are three options competing for supremacy. Options 1 and 3 contain specific, quantified targets for the date by which global emissions should peak, the extent of emissions reductions 2050 and the date by which zero net emissions should be attained. Option 3, however, is encumbered by numerous political references to, inter alia, the fact that for developing countries, economic development and poverty eradication have priority over climate action. The second option is devoid of any targets. One can only hope that is not the winner when this part of the text is debated for want of a consensus on quantified targets.

The “individual efforts” section mercifully contains only two options, although they rank among the most heavily bracketed. The issues for debate are essentially Parties are obliged to not only prepare but implement an NMDC (which may seem rather obvious to those of us with a spectating role), whether Parties should have to regularly update an NMDC, whether the obligation to produce an NMDC is an ongoing one, and if so, how often.

The remainder of Article 4 addresses vitally important issues if the mitigation actions are to actually result in the greenhouse gas emissions reductions required. Chief among them is “ambition”, calling for the depth of Parties’ actions to increase over time. Indeed, one option states that Parties’ NMDCs should reflect their highest possible level of ambition – a statement of political significance, but without real legal effect given that the maximum level of ambition will be highly subjective. Another area covered by Article 4 is the specific requirements for NMDCs, ie that they be transparent, contain measurable obligations, be at least in part unconditional, use common, agreed metrics and be based on transparently defined baselines and reference values. These last two requirements are particularly vital – there is a real danger of Parties making what are, on paper, impressive mitigation pledges but which are based on flawed measurements and reference points and therefore do not translate into real emissions reductions.

The “environmental integrity” of the Paris Agreement is therefore, arguably, the most important part of all. Unless the architecture underpinning Parties’ mitigation actions provides for consistent, accurate, transparent measurement both in the formulation of those actions, and in their implementation, the Agreement will be little more than a shallow attempt to address a problem that needs results as well as good intentions.

Analysis of the remainder of the Agreement, as well as of the Decisions on workstreams 1 and 2 will follow.

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