By Katie Kouchakji
The clock is ticking for the world’s climate change negotiators: time is running out to meet a deadline to complete a draft negotiating text by December 2014. The deadline has been set to allow a few more months of negotiation in early 2015, before finalising the text by mid-year. This timeframe is in line with the rules of the UN Framework Convention on Climate Change (UNFCCC), which stipulate that any protocols must be communicated to all parties six months before a planned Conference of the Parties (COP) to adopt it.
The wording guiding these talks – which governments agreed in Durban in 2011 – states that their aim is ‘to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’, to be adopted at the COP in December 2015, in Paris.
‘It’s still up in the air, but the intent is that it will be legally-binding,’ says Ilona Millar, special counsel at Baker & McKenzie in Sydney. ‘It is beyond any shadow of doubt’ that the wording is calling for a legal agreement, agrees Conor Linehan, a Dublin-based partner at William Fry and member of the IBA Climate Change Justice and Human Rights Task Force.
Nepal, representing the group of least-developed countries (LDCs) in a submission to the UNFCCC in mid-March, stated that ‘calling for an outcome with legal force reinforces the need for a new legally binding instrument’.
What remains to be determined, however, is whether this will be a 'top-down' agreement – similar to the 1997 Kyoto Protocol – or a 'bottom-up' one, driven by actions undertaken by individual countries, such as China, the UK and the US.
‘During this critical year of 2014, nations have determined that they will assess the contributions they will make to a new universal climate agreement slated for 2015,' UNFCCC executive secretary Christiana Figueres said at the launch of the 4th GLOBE Climate Legislation Study. 'This is the critical year in which every nation must decide whether these contributions will be based on national legislation or regulation, on the side of clean and efficient energy or smarter land use, or on both.’
‘The LDC Group strongly believes the final contributions of Parties should be nationally determined,' says the submission from Nepal. ‘They should help us define legally binding commitments under the 2015 Agreement. The form of this inscription will be a key point of our ongoing negotiations.’
I’ve always considered that – despite the fact I recognise the ambiguity of the “protocol, another legal instrument or another outcome with legal force” – whatever the outcome in Paris, the parties would be bona fide negotiating [emission] target timetables'
Partner, William Fry; member of IBA Climate Change Justice and Human Rights Task Force
This idea of ‘contributions’ to emissions cuts – instead of ‘commitments’ – emerged in the closing hours of the Warsaw COP last year, at the insistence of some developing country governments. It has sparked concern that the Paris deal will fail to reduce emissions enough to cap the average global temperature increase at 2°C.
‘I definitely think it’s unclear whether certain developing countries are going to put forward substantial targets,’ says Andrew Schatz, an associate at DLA Piper, based in Baltimore. ‘One of the biggest questions, if it goes ahead, is what the financial arrangements will be to support it,’ adds Millar.
Road to Paris: a short history of UN climate talks
Negotiations for a successor to the Kyoto Protocol began after the 2007 Conference of the Parties (COP) to the UN Framework Convention on Climate Change (UNFCCC) in Bali. The so-called Bali Road Map launched a dedicated negotiating stream, intended to culminate at the 2009 COP in Copenhagen, with an agreement for a post-2012 international climate change framework to reduce greenhouse gas (GHG) emissions. This would replace the Kyoto Protocol, which spanned 2008-2012.
Instead, chaos and disorder ruled in Copenhagen. The two-week conference ended with a non-binding text, the Copenhagen Accord, calling on nations to submit voluntary emissions reductions targets to the UNFCCC secretariat. These pledges fell drastically short of the reductions needed to stabilise the average global temperature increase at 2°C – the level which science says is the cut-off to avoid dangerous climate change.
Further progress was made at the Durban COP 2011, where governments agreed to a second commitment period of the Kyoto Protocol, to run from 2013-2020, and – more importantly – to finalise an agreement by 2015 to cut GHGs that would apply to all nations, irrespective of economic status, from 2020. A draft negotiating text should emerge by the end of this year’s COP, to be held in Lima in December.
And, as Figueres touched on, there is the issue of those that can act via legislation and those that will have to act via regulation, such as the US. Dominated by Republicans, the US Congress is unlikely to pass any climate change legislation. This has left President Obama seeking instead to regulate emissions via the Environmental Protection Agency and the Clean Air Act.
This could make it difficult for the US to ratify the 2015 deal, if it is a treaty, as these need congressional approval. The addition of the wording 'without prejudice to the legal nature of the contributions’ in Warsaw may have been made for US benefit, says Schatz: ‘The US could then carry out its commitments without having to go through Congress and a treaty.'
In its submission to the UNFCCC prior to negotiations at the start of March, the US proposed that the schedule of contributions is housed separately from the 2015 agreement, to allow updating as time passes – and ambition increases – but also crucially so that national decisions are not influenced by other countries.
‘It looks like the US submission…is trying to deal with the prospect that the US will have to deal with any new international agreement under existing regulations,’ says Annie Petsonk, international counsel for NGO the Environmental Defense Fund in Washington, DC.
‘I’ve always considered that – despite the fact I recognise the ambiguity of the “protocol, another legal instrument or another outcome with legal force” – whatever the outcome in Paris, that the parties would be bona fide negotiating [emission] target timetables,’ says Linehan at William Fry. ‘It doesn’t say that on its face, but I think that is the sentiment, that is what the process is intended to be.’
However, he adds: ‘The climate change regime is never going to be a total top-down regime.’
Katie Kouchakji is a freelance journalist and can be contacted at firstname.lastname@example.org