Posted by Frances Lawson
It is nice to be reminded that, sometimes, things can happen more quickly than anticipated. The ‘best estimate’ for the crossing of the threshold for the entry into force of the Paris Agreement was the end of 2016. Instead, the threshold of 55% of Parties accounting for at least 55% of total global emissions was reached on 5th October. The Paris Agreement will therefore officially enter into force on 4th November 2016, just three days before the start of the 22nd Conference of the Parties to the UNFCCC (COP22) in Marrakech.
The earlier-than-expected entry into force of the Paris Agreement is an encouraging sign that the momentum accumulated during the fourteen December days of COP21 has not dissipated. High-level commitment to the Agreement, at least in much of the world, remains strong, and this is without doubt a cause for celebration. Without wishing to dampen the party, however, lest we overlook the scale of the challenge ahead. Just as the signing of the Paris Agreement was but an important first step, entry into force is the second major advance on a very long and challenging road to limiting the worst of the damage that climate change threatens to cause.
One of those challenges became apparent to me yesterday as I drafted a piece of legal advice for one of the bodies under the UNFCCC. COP22 will see simultaneous meetings of a multitude of different decision-making bodies, of which the following are the most important:
1. The COP – the organising and decision-making body of the Convention itself, consisting of representatives of all Parties to the Convention (197 countries);
2. The CMP – the organising and decision-making body of the Kyoto Protocol, consisting of representatives of all Parties to the Protocol (192 countries);
3. The CMA – the organising and decision-making body of the Paris Agreement, which will meet for the first time in Marrakech, comprised of representatives of all Parties to the Agreement (currently 81 countries);
4. The Ad hoc Working Group on the Paris Agreement (APA) – tasked with devising all sorts of modalities to make the Agreement functional and fit for purpose in practice, for adoption by the CMA.
In addition, there are two “implementing” bodies which will also meet in Marrakech – the Subsidiary Body on Implementation (SBI) and the Subsidiary Body on Scientific and Technical Advice (SBSTA). And the list does not end there.
It would be unfair to categorise the UNFCCC as a bloated talking shop; yet the scale and urgency of the climate change problem means that rapid action is required. As poignantly stated in italics in the UNFCCC’s press release about the Paris Agreement’s entry into force:
“The fact that somewhere around one degree of this [1.5 degree temperature] rise has already happened and global greenhouse gas emissions have not yet peaked underlines the urgency of implementing the Paris Agreement in full.”
Urgent implementation is, however, something that the current institutional arrangements are ill-equipped to deliver. The Advice I was drafting yesterday concerned two bodies set up under the UNFCCC that now have an overlapping role. The question was I was asked to advise upon was whether these two bodies could seek to collaborate formally so as to improve the delivery of their dual purpose without obtaining formal approval from the UNFCCC decision-making body that created it. As much as there would be much to be gained by streamlining the delivery of these bodies’ overlapping functions, the answer, unfortunately, was ‘no’ due to the wording in the legal texts that created them. Rather, such a decision could only be taken by the UNFCCC decision-making body. Given that all the main UNFCCC decision-making bodies meet only once a year, the opportunities for obtaining such approval are very limited. The urgency of meeting either the 1.5 or the 2 degree temperature goals cannot wait for politicians to get together at an annual meeting to take what should be a no-brainer of a decision. The UNFCCC regime urgently needs some institutional simplification in order to increase the speed with which decisions can be taken and actions implemented. Whether this even makes it onto the very crowded agenda at COP22 in Marrakech looks doubtful.
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