Towards a legally binding climate agreement in Paris? Prof. Dr. Christina Voigt 13 mars 2015

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1 Towards a legally binding climate agreement in Paris? Prof. Dr. Christina Voigt 13 mars 2015

2 Some preliminary remarks United Nations Framework Convention on Climate Change (adopted 1992, in force since 1994) 196 Parties (195 states plus EU) Governing Body: Conference of the Parties (COP) Framework Convention

3 Some preliminary remarks Broad «commitments» Distinction between «developed» and «developing countries»; Common but differentiated responsibility and respective capabilities (CBDR-RC) Art. 3 UNFCCC Developed countries (UNFCCC Annex I): «should take the lead in combating climate change and the adverse effects thereof» (Art. 3); «shall adopt national policies and measures on the mitigation of climate change» (Art. 4.2), «shall provide new and additional financial resources» (Art. 4.3, 4.7), have quantified reduction commitments under the Kyoto Protocol (Art. 3.1 KP)

4 Some preliminary remarks Developing countries (Non-Annex): Tja Promote sustainable development Develop national inventories of GHGs Formulate national programs «Promote and cooperate but no obligation/commitment to reduce GHG emissions

5

6 Some preliminary remarks More stringency over time through protocols (Art.17) Kyoto Protocol (1997/2005) but this was not enough to meet the objective More ambitious agreement is needed!! In line with science Covering all Parties

7 But things have changed! China has become the world s biggest emitter in 2007 The «developing world» emitted more than the developed world in 2012 Majority of emissions by 2020 is expected to come from the energy sector (60%) in major «developing» countries Fault-line between developed and developing countries does not correspond to todays reality neither to the future s

8 Breakdown of Global Emissions by Country Emissions from Annex B countries have slightly declined Emissions from non-annex B countries have increased rapidly in recent years Annex B countries have emission commitments in the Kyoto Protocol Source: CDIAC Data; Le Quéré et al 2013; Global Carbon Project 2013

9 Durban Platform for Enhanced Action (ADP) a) Etablert av COP 17 in 2011 b) Mandat: (1/CP.17) Also decides to launch a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties, through a subsidiary body under the Convention hereby established and to be known as the Ad Hoc Working Group on the Durban Platform for Enhanced Action and: Ad Hoc Working Group on the Durban Platform for Enhanced Action shall complete its work as early as possible but no later than 2015 in order to adopt this protocol, legal instrument or agreed outcome with legal force at COP 21 and to enter into force in 2020.

10 The «ADP» Establishment of a new body to negotiate a global agreement (Ad Hoc Working Group on the Durban Platform for Enhanced Action) by 2015 to come into effect and be implemented from 2020; Purpose: shall raise the level of ambition The form and substance of a new agreement were not decided, indication that it will address: mitigation, adaptation, finance, technology development and transfer, transparency of action and support, and capacity-building (1/CP.17, para 5) Parties opted for three options - protocol, legal instrument or agreed outcome with legal force 10

11 Development of the ADP: Warsaw 2013 Introduction of «Intended Nationally Determined Contributions» - INDCs (Dec. 1/CP 19, para 2(b)): (b) To invite all Parties to initiate or intensify domestic preparations for their intended nationally determined contributions, without prejudice to the legal nature of the contributions, in the context of adopting a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties towards achieving the objective of the Convention as set out in its Article 2 and to communicate them well in advance of the twenty-first session of the Conference of the Parties (by the first quarter of 2015 by those Parties ready to do so) in a manner that facilitates the clarity, transparency and understanding of the intended contributions, without prejudice to the legal nature of the contributions;

12

13 Lima 2014

14 Lima Expectations 2. Outcomes 3. Way forward towards Paris, December 2015

15 Expectations: Lima «Working COP» before Paris 2. Up-front information for INDCs («To request the Ad Hoc Working Group on the Durban Platform for Enhanced Action to identify, by the twentieth session of the Conference of the Parties, the information that Parties will provide when putting forward their contributions, without prejudice to the legal nature of the contributions, referred to in paragraph 2(b) above; ) 3. «Considering the elements of a draft negotiation text» (2/CP.18, para 9)

16 Lima 2014 Outcomes «Lima call for climate action» (-/CP.20) - Combination of decision and annex Decision: 1. Same information requirements for all Parties (exc. LDCs): 14. Agrees that the information to be provided by Parties communicating their intended nationally determined contributions, in order to facilitate clarity, transparency and understanding, may include, as appropriate, inter alia, quantifiable information on the reference point (including, as appropriate, a base year), time frames and/or periods for implementation, scope and coverage, planning processes, assumptions and methodological approaches including those for estimating and accounting for anthropogenic greenhouse gas emissions and, as appropriate, removals, and how the Party considers that its intended nationally determined contribution is fair and ambitious, in light of its national circumstances, and how it contributes towards achieving the objective of the Convention as set out in its Article 2;

17 Lima Differentiation/equity: 3. Underscores its commitment to reaching an ambitious agreement in 2015 that reflects the principle of common but differentiated responsibilities and respective capabilities, in light of different national circumstances; 3. NDC scope: mitigation-oriented/ consider adaptation component 4. Synthesis report on aggregate effects of indcs by 1. October No backsliding/ principle of progression (para 10)

18 Lima Financial support: «Urges developed country Parties to provide and mobilize enhanced financial support to developing country Parties for ambitious mitigation and adaptation actions, especially to Parties that are particularly vulnerable to the adverse effects of climate change; and recognizes complementary support by other Parties;

19 Lima Anchoring of «elements for a draft negotiation text» in annex 38 pages compilation of Parties views no draft negotiation text yet needs to be in place in May 2015

20 Lima 2014 Unresolved issues: 1. Differentiation 2. Loss and Damage 3. Finance 4. How to proceed with the draft elements text 5. Legal form of the agreement

21 Geneva; februar 2015 Geneva Negotiation text

22 Reflections From bifurcation to diversification Not two blocks anymore Many countries moved to the edge of their comfort zone Differentiation (fairness) based on national circumstances (not very concrete ) Move from burden sharing to due diligence approach Move from burden sharing to how states and the global society can develop the economy in a climate friendly way Opening for financial contributions by developing countries (see capitalization of Green Climate Fund) Influence of US-China agreement considerable Most formidable challenges still ahead (elements text: 38 pages )

23 Expectations for Paris and the New Agreement NDCs will pertain as the main form Bottom up approach Has been called a system of pledge and chat one might even say pledge and see what happens But NDCs coupled with Strong requirements of monitoring, reporting and verification (MRV) Assessment and review of aggregate effect Cycles and progression (2020, 2030, 2050.) Compliance mechanism could work. Perhaps.

24 Legal Questions 1. The evolutionary interpretation of the principles of the UNFCCC, in particular the principle of common but differentiated responsibilities and respective capabilities, 2. The reflection of differentiation in the emerging architecture of the new agreement, 3. The possible legal form(s) of the new agreement, 4. Possibilities for compliance mechanisms (see chapter L of the elements paper), 5. Ratification requirements and entry into force clause (see chapter M), 6. Anchoring of existing institutional arrangements, mechanisms and processes under the UNFCCC and the Kyoto Protocol in the new agreement and the question of (overlapping) competences, 7. The place and role of (human) rights in the agreement 8.

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