Procedural Requirements in the Paris text

Published on: September 18, 2015

Filed Under: Analysis, Draft Text

Section L is the final chapter of the Paris text. It primarily addresses the procedures around treaty implementation. It also contains other miscellaneous provisions, such as institutions and immunities. Overall, what has been suggested reflects fairly standard procedures.

Institutions:

Section L reiterates the role of the institutions established under UNFCCC; including the Conference of Parties (COP), the UNFCCC secretariat, the Subsidiary Body for Scientific and Technological Advice, and the Subsidiary Body for Implementation. It acknowledges that the Secretary-General of the UN is to be the Depositary of this agreement and it has been suggested that the Depositary should hold and manage the repository of country contribution documents (that is, NDC submissions). The text acknowledges that “new or strengthened” institutional arrangements may be needed for the final agreement, but does not further clarify what those will be.

Immunities:

A brief clause suggests legal immunity for persons exercising their functions as a Party to the agreement, but leaves the modalities open ended.

Formation of the agreement:

Signature: both states and Regional Economic Integration Organizations (REIOs) which are party to the UNFCCC will able to sign the Paris agreement, subject to ratification, at a specified date and time.

REIOs (namely, the European Union) will be bound by all obligations under the agreement, without needing any of their member states to be party to the agreement. REIOs shall declare (through the instruments of ratification, acceptance approval or accession) the extent of their competence with respect to matters governed by the agreement. REIOs and their member states may fulfil their commitments jointly; if either party meets their commitments, it is considered compliance for both parties.

Entry into force: the agreement will enter into force when a threshold has been reached. This threshold could be measured against a date, or a certain number of parties, or when enough parties have ratified the agreement to cover a certain percentage of global emissions (or a certain percentage of emission reductions). What the date or numerical values will, or are likely to, be remains unresolved but it is expected that the majority of large emitters will be required to take part in the agreement before it comes into force.

Reservations: Whether reservations may be made to the agreement is as yet undecided.

Ongoing operation:

Amendments: the rules about amendments are based on Article 15 of the UNFCCC and do not deviate from them. Any party may propose amendments to the agreement, during an ordinary session of the COP, as long as this amendment is communicated to all parties six months before the meeting. Parties shall make every effort to arrive at a consensus, but if this cannot be done then a three-fourths majority of all parties present at the meeting may form a mandate. The adopted amendment is communicated to the depository and will come into force after ninety days (but only for those parties who accepted it).

Settlement of disputes: Issues of interpretation or application of the agreements will be resolved in the same manner as laid out in Article 19 of the Kyoto Protocol and Article 14 of the UNFCCC; that is, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.

Voting: All member states have one vote. REIOs, in matters within their competence, have the same number of votes as they do member states party to the agreement. REIOs shall not exercise their right to vote if any of its member states votes.

All parties shall strive to reach a consensus. If this canot be achieved then a two-thirds majority will surfice except in the areas of finance (which requires consensus) and procedural issues (which merely requires a majority).

Withdrawal: Parties may withdraw with written notice to the depository after a currently undecided number of years.

Annexes:

Annexes are essentially an attachment to a treaty which lists information of a descriptive nature (eg scientific, technical or administrative information). Despite their descriptive fuction, they are critical in outlining the specific nature of state obligations. For example, the UNFCCC Annex I lists nations with ‘developed’ economies; and the Kyoto Protocol lists individual numerical emission reduction targets for Annex I nations in its Annex B.

Section L provides for new annexes to the Paris agreement, but they are not yet finalized. They are currently described as

  • Annex X which is “to be agreed in Paris on the basis of criteria related to evolving emissions and economic trends; to be updated regularly on the basis of such evolving information”;
  • Annex Y “to be agreed in Paris on the basis of criteria related to capability and evolving economic trends; to be updated regularly on the basis of evolving information”; and,
  • Annex Z for countries falling outside the previous two.

Throughout every section of the Paris text, the references to the “division of responsibilities between developed and developing nations” are categorized with various placeholder formats such as: “… [Annex I Parties][Developed country Parties][Parties included in annex X] [Parties in a position to do so, considering evolving capabilities] [all countries in a position to do so]…” or “… [Annex II Parties][Parties included in annex Y] [Parties in a position to do so, considering evolving capabilities] [all countries in a position to do so].”

One suggestion provided in Section L is to simply update Annex I and II of the UNFCCC. In this formulation, Annex I would consist of all parties that score above the global average of carbon emissions per capita since 1750. Annex II parties would be those outside of Annex I, whose GDP is above the average global GDP and has a population of over half a million.

Furthermore, the annexes are not necessarily limited to the function of listing groups of nations. Section L also refers to “mitigation commitments inscribed in Annex […] to this agreement.” Clearly, annexes could be utilised to store NDC data (which could also extend to include Finance and other sections of the text). The implications of formatting the agreement as such has been further discussed here.

Adoption/amendment of annexes: a number of approaches have been suggested on ways to adapt and amend the annexes to the agreeent. Whether they require an opt-in ratification process or merely adoption by the COP is undecided. A simplified procedure for enhancing mitigation commitments over time by simple and ongoing amendment to an annex has been suggested, which would suit the long-term nature of the agreement (the mitigation section will potentially require progressive enhancement of commitments every five years with a “no backsliding” principle). Whether this will find its way into the final text will remain to be seen.

Summary:

The draft Section L proposes a number of options for the procedural structure of the Paris agreement, but leaves many of the finer details to be decided. While it does not suggest anything particularly controversial, as many of the procedures for international climate negotiations have their roots in previous COPs or the original UNFCCC agreement, there are a number of sticking points and unresolved decisions regarding how the annexes are to be formulated in the final agreement. The way these sticking points are resolved could have a considerable impact on the practical application of the Paris text. In particular, the way the annexes are to be amended to ratchet up commitments over time and the exact substance of those annexes (in terms of who is obliged to do what) could be central to the long-term success of the agreement. Much will turn on what is agreed this December in Paris.

Michael Fitzgerald | Image by Sebastien Wiertz
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