The Co-Chairs (unofficial) draft text: a breakdown

Published on: October 8, 2015

Filed Under: Analysis, Featured, Unofficial draft text

The Co-Chairs ‘non-paper’ (released October 5) is split into two parts: The ‘Draft Agreement’, which contains the core, legally binding provisions set to come into force in 2020; and the corresponding ‘Draft decision’, the most recent in a long line of COP decisions which contains technical details and provisions which will evolve over time.

This article will provide an initial appraisal of this updated Paris package, compared to previous draft negotiating documents.

First Look

This entire document has the same basic shape as the previous co-chairs tool, although the Agreement part spans a mere nine pages (out of 20) instead of 26 (out of 83). Clearly, it has been considerably streamlined. The words themselves seem to have been rewritten from square one.

A lot (but not all) of the alternate ‘options’ that populated the previous drafts have been taken out, meaning that most of what remains undecided are in square brackets. In other words, there are still plenty of alternate phrases, provisions and words that need to be decided upon before the agreement is finalized, but these ‘sticking points’ have generally been collapsed from paragraph size to sentence size.

That said, being a ‘non-paper’ means the entire document is essentially bracketed. The Parties have not decided to adopt it yet, and any part (or all) of it could change. However, it still indicates a potential landing zone for Paris, so for the purposes of this analysis I will consider it at face value.

A few key points of disagreement recur noticeably throughout the text. For example, many auxiliary verbs still use the following placeholders: “[shall][should]” or “[other]”. ‘Shall’ denotes a clear mandatory requirement, whereas ‘should’ denotes a guideline, and possibly allows Parties more room for deviation from the agreement.

Another recurring point of contention is the commitments themselves – that is, whether they should be commitments at all. Parties must decide between “[contribution][commitments]” or “[other]”. According to IISD Reporting Services, INDCs were originally formulated as Intended Nationally Determined ‘Commitments’, until COP 19 in Warsaw when China and India insisted on replacing the word with ‘contributions.’ They did this to move away from Kyoto Protocol modalities, in which ‘commitments’ denoted specific top-down emission targets. However, the IISD also notes that Warsaw’s wording change was made “without prejudice to the[ir] legal nature”, which means that the Paris Agreements bottom-up contributions could still be potentially legally binding (although this depends on other factors, such as compliance measures).[1]

So, while the Agreement is shorter and considerably easier to read, its central requirements remain unresolved.

The Agreement

I will now go through the Draft Agreement Article by Article. The streamlining process has provided clarity, but also removed many provisions or words which may have otherwise ended up in the agreement. It is important to track these changes.

Preamble

The preamble is a concise rewrite of the previous draft iteration. However, it no longer contains references to human rights, gender equality, low-lying small island nations, the Right to Mother Earth, health, civil society, equity, common but differentiated responsibilities. It does, however, note that additional paragraphs can be added.

Article 1 – Definitions

This Article adds an additional definition; the “CMA”. The CMA is the Conference of the Parties serving as the meeting of the Parties to this Agreement. Or in other words, all future COPs beyond COP 21. COP 22 will also be CMA 1.

References to the annexes (which were previously present, but undefined) are removed, although once again the Co-Chairs explicitly note that more can be added to this Article at later stages.

Article 2 – Purpose

This article covers all of the bases laid out previously in a considerably more concise manner. This article does include a reference to common but differentiated responsibilities. The only undecided element is whether the Agreement’s long term goal should be to hold global average temperature below 2 degrees, or 1.5 degrees.[2] Whichever is eventually decided will upon will, however, be left open to change “on the basis of best available scientific knowledge.”[3]

Article 3 – Mitigation

The new Mitigation Article shorter than previous versions but is just as open-ended.

The two key variables of the target and date (ie deadline for the target) are unresolved. The date is simply referred to as [X], taking away previous references to 2050 or 2100.[4] This potentially leaves room for a short term goal – something previous drafts have been criticised for omitting – although this is perhaps politically unrealistic. The target could be either to peak greenhouse gas emissions by the decided date; to reach zero net emissions by the decided date; or to simply reach a vaguely worded “global low carbon transition”.[5] It would be difficult to measure or account for the third option, and the implications of the first two will depend on what date they are set against. Notably, references to an ambition baseline for developed nations (of 25-40% greenhouse gas reductions in their first Nationally Determined Contribution) have been removed from this draft.

Once again, even though this Article is more streamlined than previous drafts, the central issue is of climate change mitigation – which the entire agreement is setup around –  is no closer to being decided.

In terms of the NDCs themselves, they are still to reflect the Parties highest possible ambition[6] in light of national circumstances.[7] However, whether the NDC is to be quantifiable and unconditional still lacks consensus.[8] This is problematic: if NDCs cannot be easily compared or even understood, it will be difficult to create a trusting environment where everyone commits a fair share.

“Regular” communication of NDCS is now no longer in square brackets, showing that there is likely consensus on that point.[9] The commitment cycles will be every five years, unless decided otherwise by the CMA.

The requirement for these regular updates to be “progressively more ambitious” has also been liberated from square brackets.[10] This is important, because many (including the Co-Chairs of the ADP) have postulated that an agreement which does not initially meet the requirements the 2 degree goal could still be considered pragmatically successful based on its long-term outcomes. With the current projection of the net INDCs looking to well overshoot the required cuts to stay within 2 degrees, a requirement for Parties to regularly incrementally upgrade their NDCs is crucial.

The UNFCCC secretariat shall maintain a public registry of all of the NDCs,[11] which (as outlined in previous discussions of the Transparency section) will create a degree of accountability between parties. The progression clause has a bottom line of “more amibitou[n]” than previous efforts but no upper limit, so anything that fosters a transparency will contribute to an environment which encourages Parties to submit improvements beyond token levels.

Developing Parties are eligible for support under this Article (ie through Finance, Tech Transfer and Capacity Building, are covered in the later Articles)[12] and Parties are encouraged to form joint plans.[13] These provisions are not explained any further.

Finally, in the streamlining of this section, any references to global sectoral emission reduction targets for international aviation and maritime transport have been removed. These industries cover 3% of global emissions, which is not insignificant.

Ultimately, while the skeleton of an workable mitigation regime is now on the cards, the substance remains unresolved.

Article 4 – Adaptation 

This section is substantially similar, but more concise than previous iterations. ‘Loss and damage’ has been separated into another Article. The primary requirement here is for parties to create National Actions Plans (NAPs).[14] Suggestions of what to contain in NAPS (such as reporting measures, evaluations, plans, etc) are prefixed with ‘may’[15] or ‘could include’[16] which does not actually bind the participants to anything specific. And once again, most of the commitments in this article generally hinge on whether parties ‘shall’ or ‘should’ take these actions.

How often NAPs will be updated is an unresolved, to be decided at a future CMA.[17]

Once again, a public registry will display NAPs[18], and developing Parties will be eligible for support under this Article (without further explanation).[19]

Overall, this section seems slightly watered down.

Article 5 – Loss and Damage 

Loss and damage being given its own section could be seen as a victory for the developing nations who were pushing for it.

One the other hand, this article is very short; containing token recognition to the importance of “addressing loss and damage” with “international cooperation and solidarity.”

Article 6 – Finance 

Article 6 is considerably shorter and much more concise than previous editions, while covering mostly the same subject matter.

Financial support will operate through the established Financial Mechanism (and its operating entities).[20] They will make recommendations to the CMA biennially.[21]

The finance flows will generally (and transparently)[22] move from developed to developing nations and be balanced between both mitigation and adaptation.[23] The wording is undecided between ‘Developed country parties should take the lead’ and ‘developed country Parties and Parties in a position to’; the latter group being slightly more inclusive.[24] Grant-based finance is to be prioritized towards the most vulnerable developing nations.[25]

The annual finance provided will total 100 Billion USD.[26] While this target has long been agreed upon, it remains in square brackets in this text, which perhaps reflects the fact that Parties have still not clarified where the majority of it will come from.

This Finance article no longer contains any provisions about reducing international support for high-carbon investment, such as fossil fuels. In fact, fossil fuels are not mentioned at all in this new text. This is alarming, considering that studies have shown that 82% of todays fossil fuel reserves must remain in the ground to avoid 2 degrees of warming.

Article 7 – Technology Development and Transfer 

This article has been cut down considerably. It confirms that the existing Technology Mechanism (and its subcommittees) will continue to be used for the goal of technology development and transfer between nations.[27] However, the specific guidelines for the technology framework have been put off for the first CMA (in 2016).  Tech transfer clearly will clearly not be a priority at COP 21.

Additionally, any reference to the wider-scoped Climate Resilience and Sustainable Development Mechanism has also been removed.

Article 8 – Capacity Building 

This article still contains two distinct alternate provisions. The first one will enhance existing capacity-building institutions, the second one will establish a new institution entirely. The rest of the details are left to the draft decision.

Article 9 – Transparency 

Parties will provide ‘regular’ and ‘complete’ info on: a national inventory of emissions by sources and removals by sinks of greenhouses gases, progress on its NDCs, information on actions taken to reduce vulnerability, and support flows provided and received; using comparable methodologies to befurther agreed upon by the CMA.

Further specifics suggested in previous drafts such as the common monitoring/reporting/verification system; standardised format of NDCs, independent expert review, etc, have also been put off until the first CMA.

Article 10 – Global Stocktake 

This is a new article. Judging by its placement, it has replaced the Timeframes and process related to commitments section. This section was rather piecemeal and underdeveloped in previous drafts, so this is unsurprising. However, in the transition, some notable provisions have been removed. Some omissions are logical, such as the requirement for periodic updates for commitments (as this provision is now placed in the Mitigation Article). Others are less so: all references to an ex ante (or ex post) consultation process have been removed; a provision which could have provided valuable accountability between parties, motivating increased bottom-up ambition. Without this process, all NDCs/pledges will be essentially self-assessed, which could lessen trust and create a first-mover problem. Reports of the most recent negotiation session do not indicate any reason why the Co-Chairs decided to remove this provision from the text.

The new ‘Global Stocktake’ appears to be a slightly re-worded version of the previously suggested ‘aggregate ambition assessment’, in which the governing body will regularly review all Parties commitments, and assess their overall progress towards their goal. The first Stocktake meeting will be in either 2023 or 2024, and repeated ‘regularly’ (with modailities to be agreed upon at the first meeting). Without any ex ante consultation process before the Stocktake, the nature and form of this mechanism will be key.

Article 11 – Facilitating Implementation and Compliance  

This section was previously inconclusive, and the new Article essentially puts off any decisions until the first CMA session. It is clear that a new ‘process’ or ‘mechanism’ similar to the Compliance Committee under the Kyoto Protocol will be established, but its specific modalities and procedures will not be decided at COP 21.

There is no longer any reference to a Climate Justice Tribunal, although the wording is left opened-ended. However, because the ‘process’ or ‘mechanism’ will be facilitative, non-punitive and non-adversarial, this suggestion now seems a very unlikely outcome.

Procedural Requirements (Articles 12 – 26)

The various provisions contained in Section L have now been split into individual articles. The provisions detailing the CMA, secretariat, the depositary, and other institutional bodies are all straightforward procedure and do not seem controversial. Rules around voting and amendments are the same as the UNFCCC.

Most of the points of contention from Section L remain unresolved. Parties need to decide whether the agreements will be open for signature and ratification on 21 March 2016 or 20 March 2017.[28] They also need to clarify whether there are preconditions to joining the Agreement.[29] Finally, the trigger for the agreement to come into force needs to be decided. It will be either a certain number of Parties ratifying, or a certain threshold of global greenhouse gases emissions covered by ratifying Parties.[30]

This draft does however clarify that that reservations cannot be made[31], and that Parties may withdraw after three years after entry into force.[32]

Annexes and Common But Differentiated Responsibilities

How nations are to be divided into annexes is also still undecided.[33] There is no mention of common but differentiated responsibilities in the Annexes Article (20) – or any other operative clauses, for that matter. Provisions in the Mitigation and Adaptation Articles, for example, which ‘qualify’ developing nations for support, do not actually explain what that means. This is bizarre omission, because CBDR has been a central theme of the climate negotiations since the beginning. IISD wrote in February:

[T]he Geneva text clearly shows that all options on differentiation remain on the table. Differentiation is addressed in several sections of the text, from the preamble to the substantive sections, and many approaches are suggested. While some proposals rely on parties’ existing categorization embedded in the UNFCCC annexes, others suggest going beyond the existing distinction between developed and developing countries, with the some parties proposing entirely new annexes for the Paris agreement. 

Why the Co-Chairs have all but removed CBDR from this iteration is not clear.

The Draft Decision

The corresponding draft decision (1/CP.21) covers is the second part of the Paris ‘package’. It is eleven pages long. Assuming the negotiations in December are successful, this decision will be signed by all members at the Conference of Parties. In contrast to the Paris Agreement, which will be an international treaty lasting from 2020 onwards, the decision is just one in a long line of COP decisions, and will be supplemented by further COP/CMA decisions in the further. As such, it primarily contains practical details surrounding short term implementation. The details include: procedure around adopting and operationalising each Article of the Agreement, procedure around submitting INDCs before COP 21, interim institutional arrangements, and administrative and budgetary matters (urging Parties to make voluntary financial contributions). Overall, it merely seems to reflect the core provisions of the Agreement. The Agreement will likely be the key focus of the negotiations in October and December.

Interestingly, the importance of respecting human rights while addressing climate change are “emphasized” in the preamble of the Decision, despite their omission from the Agreement. Carbon markets have also been put in the Decision but are absent from the Agreement.

Conclusions

The co-chairs non-paper is considerably shorter and easier to read than previous draft texts. However, this streamlining came with some downsides. The new text omits many provisions which could have helped build a more ambitious agreement. There are no longer any mention of fossil fuels, the aviation sector or maritime industry. Nor are there any references to gender, health and equity. Many of the ambitious suggestions tabled by small developing countries, such as the Right to Mother Earth, a Climate Justice Tribunal, and the Climate Resilience and Sustainable Development Mechanism are nowhere to be seen. The text also sidelines human rights and carbon markets from the core Agreement to the annual COP Declaration; and common but differentiated responsibilities are mentioned only once. Loss and Damage is included, but with very weak provisions. The proposed ex ante consultation process is also out, which it means that all INDCs will be essentially self-assessed by Parties – a missed opportunity to create a more transparent, trusting environment.

What remains is concise and easy to follow, but incomplete in key areas. The long term goal and core mitigation commitments are essentially unresolved, as are the Annexes. Many decisions have been put off until COP 22/CMA 1 in 2016, including the specific details of the technology transfer, transparency and compliance regimes, as well as whether there is going to be any equity element or substance in the 2023 stocktaking process. 2016 is looking to be a just as important as 2015.

But, it is not all bad news. The inclusion of a progression clause which will require Parties to periodically ramp up their commitments is encouraging. And while many important provisions are omitted, the Co-Chairs have constantly reiterated that “nothing is agreed until everything is agreed.” This draft Package represents their summary on behalf of the Parties: the Parties themselves will get the final say about what is in the text. And ultimately, Parties will have a much easier time having their say because of this new text. The Co-Chairs clarified in their accompanying scenario note that the entirety of the Bonn conference on 19-23 October will be substantive negotiations (unlike the previous round ). Parties will be able to work through this new Agreement line by line – and covering nine pages in five days is a lot easier than 86!

Deconstructing Paris will have contributors on the ground on Bonn providing first hand reports of the negotiations. Keep an eye on our Facebook and Twitter for updates.

Update: read about the 19-23 October Bonn conference here, and our breakdown of the new draft it produced here
Simon Hillier | Image by Bogdan Lungu

 

[1] There is an intuitive desire for the Agreement to be worded prescriptively (i.e. use commitment rather than contribution), but it is possible to have a binding legal agreement that lacks enforceability at international law (or vice versa). A legal norm is considered ‘binding’ when it creates a legal obligation, which is distinct from legal enforceability. A norm is only ‘enforceable’ at international law if it is backed by procedural mechanisms to incentivise parties to act in the prescribed manner. These incentives can be reputational or material, implicit or explicit, and include measures such as transparency, facilitation, compliance and enforcement. See: Can the Paris Text Guarantee Compliance?
[2] Non-paper (5 October 2015) art 2(2).
[3] Art 2.2
[4] Art 3.1
[5] Art 3.1
[6] Art 3.3
[7] Art 3.13
[8] Art 3.3
[9] Art 3.2
[10] Art 3.3
[11] Art 3.7
[12] Art 3(12)
[13] Art 3.8
[14] Art 4.1, Art 4.4
[15] Art 4.7(a-c)
[16] Art 4.6(a-d)
[17] Art 4.7(c)
[18] Art 4.8
[19] Art 4.9
[20] Arts 6.10, 6.11
[21] Art 6.12
[22] Arts 6.3, 6.7
[23] Art 6.8
[24] Art 6.2
[25] Art 6.8
[26] Art 6.5
[27] Arts 7.3, 7.4
[28] Art 16.1
[29] Art 17.1
[30] Art 18.1
[31] Art 24
[32] Art 25
[33] Art 20

 

Leave a Reply

Your email address will not be published. Required fields are marked *