A new draft text?
The October Bonn inter-sessional marked the final week of official negotiations before COP 21 in this December. This session produced what is likely to be the final draft text for the post 2020 climate governance regime before COP21 (substantively speaking – there is an updated version with improved formatting).
Prior to October’s Bonn conference, the negotiation’s Co-Chair’s had released a sequence of increasingly streamlined versions of February’s original 80 page Draft Text (see the June edition, July edition, 5 October edition). The 5 October draft, which has been broken down here, is an unofficial document. It is the Co-chair’s attempt to consolidate the various negotiating viewpoints into a shorter, more workable treaty. At a mere 20 pages, it is considerably shorter and more coherent than previous drafts. However, does not mean anything without the 196 negotiating state Parties agreeing to it.
Bonn gave Parties to the opportunities to agree, disagree and comment on the draft. And comment they did. The conference itself was dramatic and controversial, with little progress made in five days. Instead of being further clarified, the new negotiating text produced during this session – ie the final official draft agreement – has ballooned back to over 50 pages long.
So what’s been added back in?
Many of the options from from the original February Negotiation Text which the Co-Chair’s removed have now been re-inserted. At a glance, this text almost appears a simple re-shuffle of the same options and stances that have been on the table since February. The re-insertion has distorted the coherency which the previous Co-Chair’s draft was able to achieve.This text is are seemingly no closer to consensus, with nearly 400 more square brackets (undecided provisions) than the original.
Nonetheless, a close reading of the new draft does show evolution towards a common ground. This article will discuss the main additions to the text, the core remaining disagreements, and what they imply for Paris.
The Co-Chairs draft was criticised for omitting a number of principles, such as human rights, indigenous rights, and gender rights, and their relation to climate change. They have now been reinserted into the preamble, purpose and various operative provisions through the text. Special note has also been made about persons under occupation, migrants, and persons with disabilities. Overall, the new draft takes an increasingly explicitly intersectional acknowledgement of various groups who are vulnerable from the impacts of climate change, and underrepresented in the solutions.
Other examples of more inclusive wording in the text is referencing the goal of conserving biological diversity (linking the impacts of climate change to a broader area of international environmental law) and the newly included definition of “climate forcers” (a more inclusive criteria for the drivers of climate change than just carbon dioxide). References to the International and Maritime Industries (which are large greenhouse producers not included with currently national carbon accounting) are also reintroduced after being omitted by the Co-Chair’s.
By listing making the description of the problem more inclusive, bottom-up action (from domestic/international civil society) will have be able to draw on a wider catalogue of experiences to when making legal arguments under the Paris climate treaty, in both the international and domestic sphere.
Long term goal, purpose, and nationally determined… measures(?)
The core operative provisions and central variables remain hotly contested however. The specific greenhouse gas stabilisation target, its timeframe, and the national mitigation/adaptation contributions are all unresolved. If anything, these sections are harder to follow than the previous drafts.
Taking into account the amount of bracketed words in Article 2 (Purpose) of the new text, the purpose of the Paris agreement could contain any combination of the following: A long term goal of decarbonisation or net zero carbon emissions, by 2050 or 2070 or 2100; the aim to stay below or well below 1.5 degrees or 2 degrees; an aim to increase adaptation and/or to address loss and damage resulting from the impacts climate change. Whether or not equity (which may manifest as some type of specific burden sharing formula) is taken into account in this core purpose is also still up in the air.
What option (or combination of options) will ultimately be decided upon is hard to say. It could be none: Article 2bis alternately talks frames the purpose around the submission and ‘ratcheting’ up of Nationally Determined Contributions (NDCs), without reference to decarbonisation, peak, or any specific target at all.
NDCs are the all-encompassing requirement for a nation to make voluntary mitigation contributions, dependent on their national circumstances. They have been explained further here. They are discussed in both the Purpose and Mitigation section in the new drafts. Both sections are almost comically square bracketed. For example:
[Each Party][All Parties] [recognizing the principle of common but differentiated responsibilities and respective capabilities] [shall][should][other] regularly [formulate] [prepare], [communicate] [submit], [maintain] [update] and [shall][should][other] [implement] [fulfill] [intended][nationally determined mitigation [commitments][contributions][actions]] [nationally determined mitigation commitments and/or contributions] [a nationally determined contribution with a mitigation component], [, which can be in the form of co-benefits resulting from [its] [the Party’s] adaptation contributions and economic diversification plans] [programmes containing measures to mitigate climate change] (NDMC/NDMCC)
This jumble has a number of implications.
- The extent that the ‘NDMC/NDMCCs’ (lets just call them NDCs) will be binding obligations. Even though bindingness at international law is more than prescriptive wording (a binding agreement will also practically rely on wider incentives such as trust, transparency, capacity and compliance measures), how this central provision is worded is important. Consider for example, [shall] vs [should] – the former denotes a clear mandatory requirement, the latter denotes a guideline.
- Whether nations will be required to include an adaptation measures as part of their NDC. Such a requirement would likely attach more significance to adaptation in the overarching Paris agreement, and bring it to the fore of the post 2020 international climate regime.
- References ‘common but differentiated responsibilities’ (CBDR), which had been removed from the Co-Chair’s draft, have been reinserted in this text (in the paragraph above quoted, and various other articles).
Common but differentiated responsibilities
How to draw the line with CBDR (ie how to divide responsibility between nations of differing capacity and historical emission responsibility) has been an ongoing issue in the climate talks.
Arguably, as CBDR is in the United Nations Framework Convention on Climate Change itself (UNFCCC; Art 4) its inclusion in the Paris text is not entirely necessarily. Nonetheless, its removal from the Co-Chair’s draft clearly provoked Parties to respond.
“Developed” and “Developing countries” are now included in newest list of definitions – although their description is left open.
[“Developed country Party” means a developed country Party [under the Convention] [within the meaning of this Agreement] [in the United Nations system].]
How will countries be divided between developed and developing?
The options still on the table are essentially:
- self-differentiation with a review system
- an equity framework (i.e. some kind of burden sharing equation)
- new annexes (ie a ‘top down’ categorisation of nations agreed in the negotiations, attached to the Paris treaty)
- or the old annexes (ie the UNFCCCs divides ‘developed’ OECD nations into Annex I, creating a ‘firewall’ between them and all other nations).
Retaining the old annexes is controversial, because it does not account for a growing ‘middle class’ of developing nations, so to speak. Annex I is noted elsewhere in this draft text, but its definition explicitly retains the scope to be changed.
Depending on how this division is ultimately defined, the Mitigation provisions suggest a number of differences between ‘developed’ and ‘developing’ NDC requirements. One example tasks the former to “undertake quantified economy-wide absolute emission reduction commitments/targets, which are comparable, measurable, and reportable” and the latter to “undertake diversified enhanced mitigation actions/efforts in a measurable, reportable, and verifiable manner, in the context of sustainable development and supported and enabled by the provision of adequate finance, technology and capacity-building by developed country Parties.” This (and the many other slightly reworded options) suggests a similar approach to NDC differentiation as the previous drafts. But the core issue of how to differentiate remains unresolved.
Progression and review
The timing in which NDCs are to be reviewed is similar to the previous text: NDCs are still to be updated and improved upon (‘ratcheted up’) every five years. This is to be complemented by a review process.
Many alternately worded options are included in the text which vary on this same idea, making it difficult to specify precisely what the hard limits and requirements will be set up around them.
The options for reviewing NDCs have become muddled. The option for an ex ante review process (a consultative process between Parties during the 12-18 month period prior to updating, to enhance clarity/transparency) which was removed from the Co-Chair’s draft has been reintroduced.
The Global Stocktake (weighing up aggregate implementation of NDCs against the best available science) is also present. It could complement or replace the ex ante review. There is a further proposal for a Technical/Scientific Review, which is left somewhat vague. The Stocktake suggestion is tied to a timeline (2023 or 2024 being the first one) whereas the Technical Scientific review is not.
Ultimately, there is likely to be some kind of review, but its timing, guidelines, formality and binding nature are unresolved.
As mentioned above, the ‘NDMC/NDMCC’ requirements may be structured to encourage adaptation contributions. The Adaptation Article was very brief in the Co-Chairs draft. In this text, many options have been reintroduced. Generally, they recognise the need for global cooperation in adaptation, and the importance of adaptation efforts independent of mitigation.
The wording in this article is not prescriptive. It requires countries to ‘acknowledge’ or ‘recognise importance’ rather than binding Parties to anything specific.
These loose requirements call for transparent country-driven national adaptation plans (NAPs), which will monitor, assess and respond to local areas of particular vulnerability. NAPs can also work together between countries, and there has been a suggestion that a Global Stocktake includes adaptation plans.
While the adaptation regime still does not seem strict, if NAPs are required with future NDCs, it could potentially stimulate bottom up action.
Loss and damage
The Co-Chair’s text designated L&D its own article, something the February Text had not done. This edition expands it, but it is still light on detail. There is affirmation of the creation of a new legal mechanism based on the framework outlined at the Warsaw Conference in 2013. But its specific mechanics are to still be addressed at a future meeting. This will likely continue to be a point of contention at negotiations.
Support (Finance, Technology Transfer, and Capacity Building)
Finance is another ongoing point of contention. Generally, all finance flows are intended to promote low carbon transformation over time. The previously agreed target of $100 billion USD per year (from developed to developing, however that is defined) from 2020 onwards is still the text.
A recent OECD report suggests that $62 billion in finance is now being delivered annually, and projects that the $100 billion target can be reached by 2020. This is not a foregone conclusion however.
The new text also presents a possible pathway beyond this. There is the option in the next text of requiring a $100 billion dollar contribution floor, scaled up annually. This option includes a clear burden sharing equation (equity framework) agreed in light of priorities set by developing countries. This provision is favourable to developing nations or the ‘global South’. It would be surprising if this was included in the final text. That said, one of the reasons that this text has ballooned up to its current size is that many developing Parties at the October Bonn conference felt the Co-Chair’s draft Agreement was heavily pro ‘global North.’ A baseline of $100 billion USD set to increase every year may end up being a necessary compromise for much of the developing world to accept the agreement.
It is also worth noting that any references to reducing international support for high carbon investments (ie fossil fuels) are still out of this text. Studies have shown that 82% of today’s fossil fuel reserves must remain in the ground to avoid 2 degrees of warming. Despite this straightforward logic, fossil fuels were only tentatively mentioned in the February text and were notably omitted from the Co-Chair’s draft. This continued omission implies that it has been considered politically unrealistic to tackle climate change by directly considering fossil fuel production.
The different finance options available in the new draft text represent the underlying disagreement around the conceptualisation of CBDR. Richer countries have generally tried to blur the developed/developing line and spread the financial burden across ‘middle class’ developing nations. Poorer countries have done the opposite, and tried to place the burden on rich developed OECD countries. There also exists a debate about ‘South-South’ finance: if the existing Annexes are updated and the current ‘firewall’ removed, this will result in a requirement for capital flow to come out of large developing global South transition economies (such as China, India, Brazil, and South Africa). These Parties are obviously not enthusiastic about the prospect.
Alongside Finance, the new text’s Articles on Technology Transfer and Capacity building have ballooned. The additions are generally alternately worded provisions, rather than large substantive changes or disputing square brackets. For example, one formulation limits Capacity Building recipients to the Least Developed Countries (LDCs), Small Island Developing States (SIDs) and “other parties in need of support.” Other examples simply refers to developing countries in general. The sticking words seem to be “Developed country parties”, “parties with economies in transition” and parties “in a position” or “with capacity” (to assist developing country parties). Within these country divisions, some provisions recognise assisting vulnerable groups from an intersectional point of view, others do not specify.
Overall, the support mechanisms are taking clear shape, but they still need to be calibrated.
Other Technical Mechanisms
The Transparency mechanisms are no longer confined to their own Articles. Rather, they have been integrated throughout all parts of the new text. While little has substantively changed, the alterations give a clearer view on how the entire document will work together.
For example, how the NDCs shall be ‘housed’ (i.e. in a registry, or online system, or Annex) is in the Mitigation rather than Transparency section, as is the NDC accounting framework (i.e. common metrics, accuracy, completeness, consistency, etc). The progression/ratcheting clauses also explicitly mention transparency measures.
The Facilitation/compliance mechanisms have been elaborated slightly. This elaboration furthers follows the approach established in the Kyoto Compliance Committee. Enforcement measures are still to be neutral, transparent, non-punitive, non-adversarial, and non-judicial. The Committee operates transparently and will be structured around a plenary, which nominates a rotation of Parties to enact its functions.
When a Party does not follow its NDC, the furthest that this forum can go is to suggest an ‘indicative list of consequences’, make a declaration of noncompliance, or request the development of a compliance action plan. They may also offer aid and assistance in meeting the NDC. In a practical sense, the formulation arguably keeps the overall agreement non-binding. But it opens up avenues for bottom-up pressure by providing climate movements with both resources and legitimacy.
Art 3 ter now establishes a “sustainable development mechanism.” The wording does not specifically suggest carbon markets but it provides for “net global emission reductions through the cancellation of a share of units generated, transferred, used or acquired.” In other words, carbon credits from different kinds of projects can be bought and traded, to offset emissions. The text also says that this Mechanism will be based on Article 12 and Article 6 of the Kyoto Protocol, which create carbon markets and the Clean Development Mechanism.
Other technical requirements, such as entry into force, time frames and amendments are largely similar to the previous draft text.
This updated text has come something of a full circle back to the same options and negotiating positions present in February. Omissions from the Co-Chair’s text have for the most part been reintroduced. A cynic could argue that the negotiators are not really negotiating, but are just asserting and re-asserting their positions. Nonetheless, by following the labyrinth of provisions from draft text to draft text, one can distill a few key areas of dispute at the hear of Paris:
- How to divide the common but differentiated responsibilities. If that divide ends up favouring developed nations, developing nations will likely insist on stronger climate finance and/or loss and damage provisions.
- Once this core compromise is reached, specific dates and targets for the mitigation aims can be settled on, as well as the precise form of the self-differentiated NDC/NDMC/NDMCCs (or whatever they may ultimately be). Submitting the NDCs are likely to be a requirement of the treaty, although they will probably not be bound to an objective. The ‘ratcheting’ approach, reporting standards and some kind of review appears likely.
- From there, the catalogue of supporting mechanisms and structures to be created/built up will need to be fleshed out before 2020. There will be a lot of technical details to confirm, but the central ideas are in place.
With the right combination of frequently updated NDCs, effective transparence compliance and review processes, this agreement could be an provide a combination of ‘soft’ (nonbinding/aspirational) laws and a hard procedural framework which for civil society to focus their actions around. According to a recent UNFCCC report, the current NDCs (submitted before Paris) will global temperature to 2.7 degrees if implemented effectively. This is considerably lower than previous estimates. There is a long way to go between commitment and implementation however, and ideally this temperature limit should be lowered further. With the co-ordination and legitimacy that a Paris agreement will bring to the global climate movement, civil society will be further empowered to reduce this gap.