The Minister’s text: nearly there?

At 3pm on Friday, a new “Draft Paris Outcome” was released. It is not the final document, but it is close to it. It is based on the text produced by the ADP, and has been streamlined by the national Ministers who have identified the final remaining political choices. The entire document is 29 pages rather than 43 (including the Draft Agreement and the COP Decision). COP president Laurent Fabius noted that there are positive developments within the negotiations, and that the text strives to reflect the compromises that are emerging. The number of square brackets in the text has reduced from 939 to 367 (which indicates that many elements have been finalized; although “nothing is agreed until everything is agreed”).

At the time of writing, Parties are currently analysing and meeting over this text, and will reconvene the Plenary at 8pm.

The following is a rundown of what the primary changes are. For context, please see our analysis of the previous week’s draft documents.

General shape

This draft has the same general format but is more streamlined. Most concepts are addressed under the same article headings, although the review processes have been shuffled around slightly.  Articles that previously contained too many options to read coherently, such as finance, are much easier to follow.

The Preamble – generally

While the preamble still acknowledges the special circumstances of Small Island Developing States (SIDs) and Least Developed Countries (LDCs), it no longer recognises the special circumstances of African nations and the Central American Isthmus.

The ‘rights’ bundle – (preamble and purpose)

Most of the concepts that were in previous drafts of the preamble are still included now: education, land use, sustainable development, food security, human rights including gender, the empowerment of women, health and indigenous peoples, historical responsibility, the integrity of ecosystems, just transitions of workforces, etc. (Recognition of intergenerational equity has been removed but this has been noted as a typing error).

Furthermore, the Purpose (Art 2) of the Agreement no longer contains the option to uphold indigenous rights, intergenerational equity or gender equality. As such, these concepts no longer exist in the operational text (indigenous peoples are referenced a number of times, but not their rights). Having these concepts as part of the operational text would be a useful legal interpretive tool, and would make it easier for vulnerable groups and frontline communities to hold their governments to account with regards to their INDCs etc.

Human rights is still included in Art 2, but it is in brackets.

Overall, this element of the agreement has been watered down, despite the concepts receiving strong support from civil society within the COP21 conference space throughout the  last two weeks.

Purpose – long term goal

The temperature goal has been reformulated into three clear options, but the options on the table are essentially no different to what they have been all along: holding global average temperature below 2°C above pre-industrial levels, holding global average temperature 1.5°C above pre-industrial levels, or what appears to be a middle road option:

well below 2°C above pre-industrial levels [and to [rapidly] scale up global efforts to limit temperature increase to below 1.5 °C] [,while recognizing that in some regions and vulnerable ecosystems high risks are projected even for warming above 1.5 °C]

Measuring “net” reductions of greenhouse emissions is still referenced.

Despite the looming deadline for the agreement, Parties have still not resolved this core issue.

Mitigation (Art 3)

Collective Long Term Goal

The five options in the previous draft for formulating the ‘collective long term goal’ (ie peaking, decline, endpoint, qualitative state, or carbon budget) have been reduced in this text. Carbon budget is out. The first option essentially combines the options for peaking/decline/endpoint without taking any options off the table.

Parties collectively aim to reach the global temperature goal referred to in Article 2 through [a peaking of global greenhouse gas emissions as soon as possible, recognizing that peaking requires deeper cuts of emissions of developed countries and will be longer for developing countries; rapid reductions thereafter to [40– 70 per cent][70–95 per cent] below 2010 levels by 2050; toward achieving net zero greenhouse gas emissions [by the end][after the middle] of the century] informed by best available science, on the basis of equity and in the context of sustainable development and poverty eradication.

This option contains combinations that will result in a less ambitious collective long term goal than the previous draft. For example, a total reduction of 40% of emissions below 2010 levels (rather than 1990 levels) would likely be unfit to stay within 2°C let alone 1.5°C. It is also worth noting that “net zero” emissions has been removed from brackets in this option. Net emission reductions take into account offsets (and potentially loopholes) and are therefore less strict than decarbonization.

The second option is qualitative:

Parties collectively aim to reach the global temperature goal referred to in Article 2 through a longterm global low emissions [transformation toward [climate neutrality][decarbonization]] over the course of this century informed by best available science, on the basis of equity and in the context of sustainable development and poverty eradication.

A vague timeline of “over the course of the century” renders this option problematic also.

Not only are Parties putting off the difficult issues, they appear to be watering them down.

Other mitigation elements

The ‘Individual mitigations efforts’ part of the text has not changed. INDCs may still be reformulated as NDCMCs, NDMCCs, and MCNDCs, depending on how the different options within the broader agreement come together. This article will continue to refer to them as INDCs for the sake of simplicity.

‘Differentiated mitigation efforts’ essentially contains the same two options. The first requires developed countries to submit stricter targets with stronger reporting obligations (“quantified economy wide absolute emission reductions of all greenhouse gases”) than developing countries (“diversified enhanced mitigation action”). The second option will eventually require all parties to conform to the stricter requirements, with developed nations taking the lead.

The Flexibility clause which was added last week (giving LDCs, SIDs and potentially all African states the discretion to communicate their mitigation contributions) has been retained.

The REDD+ (forestry) element of mitigation contributions (Art 3bis) has been retained, encouraging Parties to conserve and enhance sinks and reservoirs and incentivise reduction of emissions through deforestation.

There are still two competing options for establishing carbon markets (ie ‘sustainable development mechanism’ in Art 3ter, ) but both essentially aim for the same outcome and remain to be developed further at future Meetings of the Parties (CMAs).

Finally, reference to limiting emissions from international aviation and marine bunker fuels (a significant source of emissions), working through the International Civil Aviation Organization and the International Maritime Organization,  has been removed from this draft.

Ratchet mechanism (Art 2bis)

The ratchet mechanism has been reworded again but is still light on detail. Parties are to undertake and communicate their mitigation, adaptation, and support etc efforts (ie INDCs) with an element of progression.

There is a slightly more detailed option which fleshes out the differentiated responsibilities of this process slightly (noting that it will be dependent on financial support etc), as well as clarifying that subsequent efforts must be communicated before the previous INDCs expire.

The draft COP decision (which is a political declaration rather than a durable legal instrument) invited Parties who submitted INDCs containing a timeframe up to 2025 -2030 to communicate a new one by 2020, and every five years thereafter. This is not binding but will encourage mobilization in the short term.

Subsequent INDC updates are to be informed by the global stocktake.

Global Stocktake (Art 10)

Art 10 has been slightly reworded and now is largely unbracketed.

The CMA shall periodically take stock of the implementation of this Agreement to assess the collective progress towards achieving the purpose of this Agreement and its long-term goals. It shall do so in a comprehensive and facilitative manner, considering mitigation, adaptation and the means of implementation and support, and in light of the best available science [and equity].

The first stocktake will be in either 2023 or 2024, and be held every five years thereafter. The five year cycle is no longer bracketed. Art 10 also reiterates that the stocktake is to inform and guide parties in “updating and enhancing their actions and support” (ie ratchet), but it is unclear how the stocktake and review processes will be related in practice.

There is also bracketed text in the draft decision element suggesting a facilitative dialogue to take stock in 2018/2019. Once again, the decision text represents pathways for earlier mobilisation.

Transparency (Art 9)

Technical review

The review process in Art 9 is distinct from the stocktake process in Art 10. The information provided by each party (including its INDC) shall be subject to a technical review process under Art 9. In previous drafts this process was referred to as ‘ex ante’ review and was addressed in the mitigation section. There are two review options in the present draft. Both are to be further elaborated at the first CMA (the first COP after the Agreement enters into force).

The first requires all Parties’ INDCs to be reviewed by independent experts, who provide a report on their implementation, identify areas to improve and areas in relation to compliance.

The second is more differentiated. It requires developed Parties to engage in a multilateral review process (ie peer review) that results in a conclusion that has consequences for compliance while requiring developing countries to engage in a multilateral facilitative sharing process which produces a “nonintrusive, non-punitive” summary report according to the levels of support they are receiving.

Both review options can raise issues of compliance or lead to consequences but the name of compliance mechanism is still undecided.

Facilitation and Compliance (Art 11)

A facilitation and compliance mechanism is established but it is not fleshed out. Its modalities will be further established at the first CMA.

The option for a (punitive) International Tribunal for climate justice is off the table.

The facilitation and compliance mechanism will pay particular attention to the respective national circumstances and capabilities of Parties.

Support

Finance (Art 6)

This article is now less jumbled, but still contains many diverging options.

There are three options for mobilization of finance. The first requires all Parties to mobilize or facilitate the mobilization of climate finance in accordance with their respective and evolving responsibilities and capabilities, with developed countries taking the lead, and noting the significance of public funds. The second requires action only on the part of developed nations and Annex II nations who must mobilize financial resources beyond their previous efforts. The third option again applies to all Parties, who should cooperate in a shared effort led by developed nations to promote the mobilization of funds on a wide variety of sources (including public, private, bilateral, multilateral, domestic, and international).

With regards to scale of finance, the first two options keep the US$100 billion per year funding floor. The first option does not mention developed countries specifically but does mention the Green Climate Fund whereas the second option requires the provision of resources from developed nations and Annex II nations only, with progression upwards from 2020, a burden sharing formula, and equitable distribution, and gender sensitive implementation. The third option is the least specific and does not mention the funding floor nor does it specify that funding will come from developed countries.

There are also three options for communication about financial mobilization which correspond to the three options for the duty to mobilize and the scale of financing. The first option is the most specific and contains the greatest number of brackets:

[Developed country] Parties [and other developed Parties included in Annex II] [shall][should] [periodically][biennially] communicate [relevant, indicative] information on [the [provision] [and mobilization] [and implementation] of [financial resources][support to developing countries], including [available] quantitative and qualitative information on the] projected [efforts to mobilize [and attract] climate finance][levels of public [climate finance][financial resources to be provided to developing country Parties].

The second option requires biennial reporting from developed nations and Annex II nations about the resources that have been or will be mobilized, and specifically the amount of public financing. The third option is the least specific, merely requiring Parties to “periodically communicate” and provide “indicative information.”

Finance flows to developing countries are also required to be transparent through a regular or biennial requirement for Monitoring, Review and Verification measures (“transparent, complete, consistent, comparable, and accurate information on support for developing country Parties provided”).

Finally, the balance between funding mitigation and adaptation is acknowledged as important, but no proportion or percentage split is specified.

Overall, the finance article is clearer to read, but still requires a lot of work.

Technology Transfer (Art 7)

Many brackets remain in the article but it reads smoothly. A technology transfer mechanism is established, but whether Parties “shall” or “should”  (mandatory requirement vs guideline) strengthen existing action on technology transfer is undecided.

Capacity Building (Art 8)

This article is further streamlined but differentiation remains an issue:

Capacity-building under this Agreement should enhance the capacity and ability of [countries] [developing country Parties, in particular countries with the least capacity, such as LDCs and SIDS and African countries [, in accordance with the principles and provisions of the Convention]] to take effective climate change action…

Adaptation (Art 4)

This article is very clear:

Parties acknowledge that adaptation action should follow a country-driven, gender-responsive, participatory and fully transparent approach, taking into consideration vulnerable groups, communities and ecosystems, and should be based on and guided by the best available science and, as appropriate, traditional, indigenous peoples knowledge and local knowledge systems, with a view to integrating adaptation into relevant socioeconomic and environmental policies and actions, where appropriate.

Parties are to make adaptation plans as appropriate, communicate them as a component of or in conjunction with other communications (ie successive INDC submissions).

There will also be an adaptation global stocktake consistent with the Art 10 stocktake.

Only a few parts of this section remain bracketed:

  • Recognition that greater rates and magnitude of climate change increases the likelihood of exceeding adaptation limits.
  • Recognizing the particular vulnerabilities of LDCs and SIDs.
  • Whether this framework will assisting developing countries or all “countries in need.”

Loss and Damage (Art 5)

Loss and damage has not changed at all compared to the previous draft, as deliberations are still underway to produce a revised version.

It will be in the final agreement, although it may be included as a subheading under Adaptation. At present, the loss and damage mechanism will be the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts which was established by a decision of COP19. The draft Paris Outcome provides that the Warsaw Mechanism will be reviewed at COP22 in 2016 and that the Warsaw Mechanism will establish a climate change displacement coordination facility to help coordinate efforts to address climate change induced displacement, migration and planned relocation.

Entry into force (Art 18)

This section is much more clear than previous drafts:

This Agreement shall enter into force on the thirtieth day after the date on which at least [50][60] Parties to the Convention have deposited their instruments of ratification, acceptance, approval or accession [, but not earlier than 1 January 2020].]

Requiring a mere 50-60 parties out of 196 will make it very difficult for Parties to prevent the agreement from coming into force.

Interestingly, the requirement to submit an INDC in order to become Party to the agreement, which was covered in Art 17 of the previous draft, has been removed entirely. The text now proceeds from Art 16 directly to Art 18 – presumably this is a drafting error. At the time of writing, a small number of Parties such as Venezuela, Panama, Nicaragua, Nepal and Uzbekistan have not submitted INDCs. This omission will allow them to become Parties to the agreement regardless.

Put off until 2016

To recap, a lot of work has been relegated to the first CMA (the first COP after the agreement enters into force) or COP16: carbon markets, modalities for adaptation, guidelines for the global stocktake, further loss and damage discussions, MRV, institutional arrangements for capacity buildings, and the technical expert review. Depending on the final form of the entry into force provision, the first CMA could well be COP22 in 2016.

Conclusion

Overall, the new text provides a clear landing zone with clear options. The negotiators seem to be on schedule. However, the long term goal had concepts excluded and retains potential to be formatted not ambitiously. There is also clearly work to be done on cross cutting issues of differentiation, finance, and ambition. The fact that loss and damage has not changed at all is slightly suspect: perhaps there are backroom negotiations ongoing.

Parties are reconvening at 8pm tonight to provide feedback for the document. They will then break into formal and informal spin-off groups to negotiate overnight. The COP president has expressed desire for the final text to be completed on Thursday; leaving Friday for legal ‘scrubbing.’

Simon Hillier and Lottie Boardman

 

 

 

 

 

 

 

 

 

 

 

 

 

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