More coherence but little substance: The latest COP21 negotiating text
August 28, 2015
Posted by: Frances Lawson
On Monday, all Parties involved in the UN climate change negotiations will converge on the German city of Bonn for the penultimate negotiating session ahead of the 21st Conference of the Parties in December. Their task – shaping a text that is capable of agreement by Ministers in Paris – has been made slightly easier since the previous session in June, but remains a massive challenge.
The appreciable amount of progress made since June is due not to the Parties themselves, but to the Co-Chairs who facilitate the negotiation sessions and strive to break the deadlock. The Co-Chairs were given a mandate at the end of the June session to carry out additional work on the text. Due to the highly politicised nature of the negotiations, no options proposed by Parties were to be deleted; rather, the Co-Chairs task was a limited one – consolidate the 88-page text by deleting duplicate and otiose options and grouping related provisions together. A work of structure, rather than of substance.
Despite the limited remit, the new text is testament to the invaluable work that the Co-Chairs have undertaken. Although still over 80 pages in length, it has a clear structure that divides the text into three parts as follows:
a) Part One is called the ‘Draft Agreement’. This is intended to become to core legal agreement in Paris. The new text states that this part includes those proposals which are, by their very nature, appropriate for inclusion in a legally binding text.
b) Part Two contains those provisions that are considered more suitable for a COP Decision that has legal relevance, but not binding force. Such provisions are essentially those that relate to the modus operandi of the Agreement, for examples, how it will be implemented, interim arrangements pending its entry into force and pre-2020 actions, and provisions likely to change over time.
c) Part Three of the new text is effectively the home for those provisions that don’t otherwise have one. In other words, those provisions in respect of which the Parties have yet to decide whether they should feature in Part One – the legal text, or Part Two – the COP Decision.
In terms of the content of the text, key observations are below:
Legal form
By virtue of its formulation, the new text gives a clear indication about the legal form of the new agreement. With various options having been under consideration, the likely outcome appears now to be a relatively short legal text with the headline provisions and commitments, accompanied by a lengthy COP Decision containing the detail and mechanics.
Mitigation
The new text starkly highlights the work that remains in order for the new legal agreement to be credible and effective. As appositely observed by the Co-Chairs, Part Three of the text contains issues that “are central to the Agreement and need to be addressed”. The document contains more text in brackets than unbracketed text, visually illustrating the extent of the task ahead. Some of the bracketed text is pivotal to the agreement’s legal effect. For example, the mitigation section in Part One, undoubtedly the most important section of all, shows that Parties have not yet agreed on whether their efforts should be termed “commitments”, “contributions” or “actions”. From a legal standpoint, “commitments” is clearly to be preferred.
The extent of Parties’ obligations to mitigate climate change is also unresolved, as the provisions at present state that Parties [shall] [should] or [other] either [prepare] [communicate] [implement] [maintain] mitigation efforts. Anything other than “shall” and “implement” will result in a weak agreement in terms of climate change mitigation. Obligations to “prepare” “maintain” and “communicate” are important yet purely procedural, and without an obligation to implement, the ability of the agreement to achieve a substantive outcome and keep global warming below 2 degrees Celsius is doubtful.
Despite constant rhetoric about the need to keep warming below the 2 degrees figure, Parties are not even agreed on whether that target should feature in the legal text as the object of Parties’ mitigation efforts, or whether a looser formulation from the Convention without a quantified target should be included instead. Only if Parties’ mitigation commitments are expressly linked to the 2 degree target will the agreement have any prospect of delivering what the scientific consensus states is necessary.
Adaptation
Much also remains unresolved in respect to adaptation, in particular whether Parties should be obligated to take adaptation actions, or whether they should be voluntary. A further question is whether adaptation actions should relate solely to developed country Parties, rather than those that are classed as developing, and when and how such actions should be communicated. Given the accepted view that climate change impacts the developing world in a disproportionate manner, the universality of adaptation actions is essential.
Finance
The finance section contains two particular points of interest. The first is that the principle of common but differentiated responsibilities and respective capabilities – the principle which represents a firewall between developed and developing country Parties – is in part modified by a reference to Parties’ “evolving capabilities”. This is an encouraging sign of some much-needed pragmatism creeping into the negotiations, an acknowledgement that even if the line between “developed” and “developing” countries cannot be redrawn, the responsibilities and commitments of more advanced developing countries can change in the context of the UNFCCC.
Less encouraging is the continued ambiguity in this section, and in many others, as to who the agreement’s provisions are addressed to. Frequently, the phrase “all Parties in a position to do so” appears before a proposed obligation. Introducing a subjective element whereby Parties can decide to be obligated or not would render the agreement, or those parts thereof, unenforceable and therefore of no legal weight. Given the Parties’ pledge to agree a “legally binding text” in Paris this December, the word “binding” is perhaps the one that needs to be at the very forefront of people’s minds next week in Bonn.
The full negotiating text can be downloaded here
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