Draft provisions in climate pact remain vague as December conference nears

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The United Nations recently released a twenty-page draft of an agreement containing legal provisions[1] on climate goals in early October, intended to help guide the 195 countries in further talks in mid-October[2] and final negotiations in Paris in December.[3]

The aim of the December climate conference is “to reach, for the first time, a universal, legally binding agreement that will enable us to combat climate change effectively and boost the transition towards resilient, low-carbon societies and economies.”[4] This progress is crucial since NASA predicts that “average surface temperatures could rise between 2°C and 6°C by the end of the 21st Century" compared to current levels.[5]

How will the Paris agreement measure required carbon reductions?
Negotiators have not agreed how to measure emissions reductions.

Previous climate change conferences have resulted in a more united push for climate agreement. The Warsaw Conference in 2013 required all U.N. Member States to communicate efforts combating greenhouse gas emissions that they were planning to take even before the Paris conference began.[6] Another, the Kyoto Protocol, is a forerunner to the expected Paris agreement.[7] The agreement’s current version, which has been distilled from ninety pages,[8] is intended to commit the governments to keeping warming under 2 degrees Celsius compared to pre-industrial levels.[9] Within the document are bracketed blanks, representing specific numbers that still need to be negotiated, such as the dates by which the countries will need to reach specified goals.[10] Moreover, even the metric for progress remains undecided; possibilities include (1) “peak greenhouse gas emissions by the decided date”, (2) “zero net emissions by the decided date” (3) or “a vaguely worded ‘global low carbon transition.’”[11] This vague language leaves doubt as to how a protocol could realistically be enforced. Nonetheless, the draft is being used to provide a basis for the final pre-Paris preparation talks, scheduled to run from October 19 to 23 in Bonn, Germany; on the conference's first day, less-developed countries protested that negotiators had removed provisions aimed at helping them cover the cost of shifting toward cleaner energy.[12]

The agreement will “take the form of a protocol, another legal instrument or ‘an agreed outcome with legal force’, and will be applicable to all Parties.”[13] The current negotiation is through the U.N. Ad Hoc Working Group on the Durban Platform for Enhanced Action (“ADP”),[14] which is scheduled to be adopted in December at the Paris Convention and to be in effect by 2020.[15]

The problem is that “‘legal force’ is a variable concept at international law.”[16] Hillier and Stuart argue that a legal norm may be called binding but still not guarantee that it is enforceable since it must be backed by “procedural mechanisms to incentivise parties to act in the prescribed manner.”[17] Unfortunately, the availability of measures that penalize non-compliance may discourage countries from signing on to the global initiative of counteracting climate damage.[18] Indeed, whether these goals should be commitments at all is still an issue to be decided.[19] To keep the countries accountable, the agreement would require them to communicate and improve their commitments so as to encourage transparent emissions calculations and encourage the governments to meet those commitments.[20]

Yet the facilitation of implementation and compliance essentially has been left undecided under Article 11.[21] The Kyoto Protocol’s Compliance Committee may be used as a model.[22] It has used independent experts to “monitor and control the procedure surrounding the Protocol’s Parties emission-reduction commitments.”[23] Parties can report non-compliance; the Committee uses two branches, a traditional enforcement branch and a “facilitative” branch to respond with non-punitive consequences such as providing suggestions or recommending actions when progress is not being made toward completion of commitments.[24] The facilitative branch advises and provides warnings of potential non-compliance while the enforcement branch determines whether the reporting and reduction requirements are being met.[25]

While the Kyoto Protocol is a framework to consider, it is not necessarily considered successful; for example, its voluntary nature allowed Canada to withdraw.[26] What is the correct balance to strike between voluntary participation and incentives and sanctions for failure to comply? Will countries be willing to sign on to strict commitments that may result in punishments for failure? Will those punishments deter countries from participating or rather deter participating countries from shirking their commitments?

Ultimately, while the Agreement is much more concise than the previous ninety-page suggested version, key provisions are still surprisingly vague, given that the final agreement is scheduled to be reached in December. [27] The balance between encouraging countries to make real progress while also holding them accountable for their commitments is proving delicate and difficult. The parties will have to shape the text to strike this delicate balance in Paris in December.

[1] U.N. Ad Hoc Working Group on the Durban Platform for Enhanced Action (Non-paper), Oct. 5, 2015, available athttp://unfccc.int/resource/docs/2015/adp2/eng/8infnot.pdf (PDF) [http://perma.cc/8J72-J4V6]; see also Sylvie Corbet, UN releases a draft for potential agreement on climate, Associated Press para. 2 (Oct. 5, 2015), http://bigstory.ap.org/article/8b248903a0f94ea99f0ce6b86231ea28/un-releases-draft-potential-agreement-climate [http://perma.cc/NFC6-PSLA].

[2] Id. at para. 3.

[3] Fiona Harvey, UN publishes draft of slimmed-down Paris climate change deal, The Guardian para. 1 (Oct. 5, 2015), http://www.theguardian.com/environment/2015/oct/05/un-publishes-draft-of-slimmed-down-paris-climate-change-deal [http://perma.cc/SK8P-35VW].

[4] Gov’t France, COP21 Main Issues para. 3, http://www.cop21.gouv.fr/en/cop21-cmp11/cop21-main-issues [http://perma.cc/4AGS-XKB4] (last visited Oct 13, 2015).

[5] How Much More Will Earth Warm?, Nat’l Aeronautics & Space Admin. (U.S.), para. 3 http://earthobservatory.nasa.gov/Features/GlobalWarming/page5.php [http://perma.cc/EYY2-3DLS] (last visited Oct. 12, 2015).

[6] Gov’t FRANCE, Climate Change and Decisions para. 3, http://www.cop21.gouv.fr/en/cop21-cmp11/climate-change-and-decisions [http://perma.cc/KYQ6-YT33] (last visited October 13, 2015).

[7] Simon Hillier & Thomas Stuart, Can the Paris Text Guarantee Compliance?, Deconstructing Paris para. 6 (Sept. 2, 2015), http://paristext2015.com/2015/09/can-the-paris-text-guarantee-compliance [http://perma.cc/9VGY-YGWY].

[8] Harvey, supra note 3

[9] Id. at para. 5; see also Simon Hillier, October’s Draft Text: A Breakdown, Deconstructing Paris para. 11 (Oct. 8, 2015), http://paristext2015.com/2015/10/octobers-draft-text-initial-appraisal [ http://perma.cc/NNA7-GVNN] (debating whether the long term goal should be to hold temperatures under 2 degrees Celsius or 1.5 degrees Celsius).

[10] Harvey, supra note 3, at paras. 6–7; see also Hillier, supra note 9, at para. 4 (discussing brackets). Some of the brackets include options of “[shall][should]” or “[other]” which means that there is still some debate about whether these commitments will be mandatory, merely guidelines, or giving Parties the capability of deciding a different standard.

[11] Hillier, supra note 9, at para. 13.

[12] Harvey, supra note 3, paras. 16–17; China, developing countries crying foul over UN climate change summit in Bonn, Deutche Wellehttp://www.dw.com/en/china-developing-countries-crying-foul-over-un-climate-change-summit-in-bonn/a-18792155.

[13] Climate Action: The 2015 International Agreement (EC) para. 1 (Sept. 24, 2015), http://ec.europa.eu/clima/policies/international/negotiations/future/index_en.htm [http://perma.cc/L5HX-LZVU].

[14] Id. The Durban Platform was adopted by “parties to the United Nations Framework Convention on Climate Change (UNFCCC)” and launched the new climate negotiations; see also Daniel Bodansky, The Durban Platform Negotiations: Goals and Options, para. 1 (July 2012), http://belfercenter.ksg.harvard.edu/publication/22196/durban_platform_negotiations.html [ http://perma.cc/Y2YH-7WXH] (discussing the Durban Platform). “The Durban Platform represents a finely balanced compromise among the principal negotiating groups in the UN climate-change regime.” Id. at para. 2

[15] Climate Change and Decisions, supra note 6, para. 2.

[16] Hillier & Stuart, supra note 7, at para. 2.

[17] Id.

[18] Id. at para. 4.

[19] Hillier, supra note 9, at para. 5.

[20] Corbet, supra note 1, paras. 9, 11–12; see also Hillier, supra note 9 at paras. 16-17 (stating that each commitment cycle spans five years and that each update must be “progressively more ambitious”).

[21] Hillier, supra note 9, at para. 40.

[22] Id.

[23] Hillier & Stuart, supra note 7, at para. 6.

[24] Id.

[25] Id.

[26] Id. at para. 7.

[27] Hillier, supra note 9, at paras. 3–5.

Posted by Kathryn E. White on Mon. October 19, 2015 8:45 PM
Categories: Climate Change, Environmental, France, International regulatory coordination, United Nations

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