OPINION: On the road to Paris – spotlight on the legal issues
Only six months remain before governments gather this December in Paris to reach a new international climate change agreement. The legal form of the new agreement is of paramount importance and progress on this issue must begin in earnest at United Nations meetings in Bonn, Germany this month, says Illari Aragon of the Legal Response Initiative. A modified version of this article first appeared in The Ecologist.
At the United Nations Framework Convention on Climate Change (UNFCCC) talks in Geneva in February 2015, governments agreed the basis for the negotiations to move forward towards an agreement at the 21st Conference of the Parties (COP21) in Paris. The 90-page official negotiating text covers the substantive content of what will form the new climate change agreement: including mitigation, adaptation, finance, technology and capacity building components. The text contains, however, an array of varying proposals and options for addressing these elements. The section on adaptation, for example, presents as many as 13 alternative texts.
When climate negotiators meet again in Bonn during the next two weeks, their task is great. They are expected to commence a lengthy and granular process of narrowing down the text, negotiating line by line and trying to find common ground. While some text options present marginal differences, some others suggest radically opposed views. This is the case, for example, with the finance section and thecross-cutting issue of ‘differentiation’, referring to a differentiated responsibility to fighting climate change.
Options for the legal form of the new climate agreement
With only six months to go until COP21, attention to the legal form of the new agreement needs to progress in earnest. This is an aspect barely covered in the text and has been minimally addressed by the Parties so far. Apart from setting out that the new agreement could be ‘a protocol, another legal instrument or an agreed outcome with legal force’ (Durban mandate) no further specification has been agreed as to what is intended or covered by each of these options. And there is of course, room for interpretation in respect of the implications of each of these potential outcomes.
But when thinking about these options it is important to consider that the legal form of the agreement alone does not determine its strength or legal force. In other words, legal bindingness does not only depend on form, but also on the wording deployed in specific provisions and whether these create rights and obligations on States. For instance, even if the new agreement takes the form of a legally binding Protocol, this does not mean that all provisions will be clearly enforceable. Provisions can always be formulated in generic terms, or refer to general aspirations, commending Parties to increase efforts without creating legal obligations as such. As opposed to phrases such as ‘as appropriate,’ ‘if necessary,’ ‘insofar as possible,’ and ‘all practicable steps’ (see UNFCCC Article 4.5, for example) provisions spelled out in rather mandatory language, e.g ‘shall’, ‘must’ can envisage specific activities and set out binding and clearly enforceable commitments. For the Paris agreement, the precise language is therefore fundamental.
The Durban mandate is also silent in respect of the structure of the new agreement; specifically, whether the Paris outcome should comprise only one instrument or consist of multiple instruments.
Many Parties support the view of a mixed outcome or ‘package’, comprised by a ‘core’ agreement (taking the form of a Protocol) and supplemented by implementing documents such as COP decisions. Under this form, however, it is unclear what may be included in the core agreement and what may not. For example, in respect of INDCs – the backbone of the new agreement – there is no uniform opinion as to whether these should be inscribed in the core agreement (for instance as an Annex, Appendix, Attachment or Schedules) or elsewhere (COP decisions for example).
Nevertheless, at the June meeting in Bonn, Parties are expected to take steps forward. They have been invited to consider elements that should be included in the Paris agreement, as opposed to a COP decision (see ADP Co-Chairs scenario note). Similarly, where to place issues like an adaptation goal, human rights and loss and damage — critical issues for some of the most vulnerable countries — is also important. Rather than COP decisions (strictly speaking, not legally binding), references to human rights or loss and damage enshrined in the agreement itself would formally enhance the status of these issues. Commitments contained in this legal form stand a better chance of compliance, providing — of course — that obligations are clearly defined and spelled out in mandatory as opposed to aspirational form, as outlined above.
So, if a 2015 Package is agreed in Paris, a key issue for parties would be to distinguish issues of particular importance, hence integrated into the core agreement with stringency and more detail, and other matters that can be addressed in more general terms in complementary documents.
How should nations’ differentiated responsibility for climate mitigation be addressed?
Like the issue of legal form and structure, another fundamental question ahead of Paris relates to how the burden of mitigation will be shared between developed and developing nations in the new agreement. While the Kyoto Protocol establishes emission limitations and reduction targets for developed countries only, in the realm of the current negotiations, ‘all Parties’ are expected to make contributions, however, as set out in Lima: ‘in light of different national circumstances’. While this indicates a move away from the traditional distinction between developed country parties (listed in Annex I of the UNFCCC) and all others, nothing on the matter of differentiation has been settled yet. With some countries still supporting the existing form of distinction, and others even proposing further approaches to differentiation (Brazil’s ‘concentric differentiation’ for example) different views prevail on this matter.
The pressure is on
The Geneva negotiating text keeps the show on the road towards a new climate deal by 2015. However, countries need to make the most of the negotiating time available in June, which, in the face of the challenge, is short. Efforts by the UNFCCC secretariat and the ADP Co-Chairs to ease the process are underway (see note by the UNFCCCC secretariat on overlaps and duplications, for example), however, the extent to which Parties advance negotiations on substantive matters is yet to be seen. Clarity on legal aspects and signs of convergence on contentious issues like differentiation need to materialise as early as possible in order to ensure a successful session in Paris. With only 6 months left until this moment, the pressure is on.
The Legal Response Initiative (LRI) supports developing nations at the climate change negotiations. LRI runs an advisory service in real time, produces briefing papers and implements training for country delegations. For more information visit: legalresponseinitiative.org
The Legal Response Initiative (LRI) is supported by CDKN.
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Image: Aftermath of Cyclone Sidr, Bangladesh, 2007. Courtesy Direct Relief.