Update on COP21 negotiation texts

In 2011, the parties to the United Nations Framework Convention on Climate Change agreed to establish a process to “develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties” (the Agreement). The Agreement will seek to put in place a regime to reduce emissions to limit temperature increase to 2°C¹ by the end of the century. Implementation of the Agreement will begin in 2020. The Agreement is expected to be adopted by the parties to the Convention at the climate change negotiations in Paris (COP21), which will take place from 30 November 2015 to 11 December 2015.

On 24 July 2015, a consolidated draft text for the Agreement was released to help guide negotiations towards an international climate change agreement at COP21 (Draft Text).

The Draft Text is organised in three sections:

• A draft agreement. This includes provisions that are appropriate for inclusion in an agreement such as overarching commitments, durable provisions and standard provisions for an agreement.
• A draft COP Decision (Decision). This includes provisions that are more appropriate for inclusion in a Decision such as details of implementation of the agreement, provisions likely to change over time and provisions related to pre-2020 actions and interim arrangements.
• A third section that includes provisions which could go in either the agreement or a Decision.

As would be expected, the draft agreement and Decision, together with the content of the third section, cover the broad range of areas that have been discussed in previous climate negotiations. These include mitigation of climate change, adaptation to climate change, the provision of climate finance, technology development and transfer; issues around the measurement, reporting and verification of climate actions, procedural / institutional provisions and the means of documenting climate commitments that the parties may make.

An overview of some of the key areas of the Draft Text is set out below.

The Draft Text contains an overarching reference to stabilizing greenhouse gas (GHG) concentrations at a level that would prevent dangerous climate change, and highlights issues in relation to the adaptation of ecosystems, food production and sustainable economic development. In reality any commitments agreed in Paris are likely to fall short of the objective of stabilizing GHG concentrations at a level that would prevent dangerous climate change.

There are various options outlined which provide for some kind of communication / statement of climate mitigation targets by individual parties. Provision is also made for parties to cooperate / implement targets and/or actions jointly. This could be seen as a nod to some kind of international emissions trading arrangement but could also allow entities such as the EU to formally work together to meet a specific target (as is likely to be enshrined in the EU’s forthcoming climate legislation). Provision is made for targets / actions to be enhanced over time. A distinction still remains between what is expected of developed countries as opposed to developing countries, though such delineation will be much less stark than was the case under the Kyoto Protocol (which imposed legally binding emissions reduction targets on developed countries only).

One option for the Decision text refers (among other factors) to the establishment of low emissions strategies to mobilise investments, create incentives for early action and incentivise and coordinate effective action. It also refers to the development of accounting rules for the establishment of market mechanisms. Other options are silent on the use of market mechanisms. This could lead to a lively debate at Paris, with many parties and private sector market participants keen to institute climate-based market mechanisms to unlock private sector finance.

The requirement that countries collectively adapt to the effects of climate change is enshrined in a number of drafting options, one of which relates to setting a “global goal” for adaptation. It suggests that individual countries should variously undertake adaptation actions, help others to adapt, prepare adaptation plans, and integrate adaptation into broader nationally determined contributions. Different mechanisms for communication of adaptation-related issues are suggested. Draft Decision text covers a broad range of areas including strengthening the institutional arrangements in respect of adaptation.

It is broadly acknowledged that developing countries need finance for adapting to and mitigating climate change. Different formulations are set out to describe which countries should be contributing to climate finance. Various principles are set out in respect of finance, including that it be new and additional, quantifiable, comparable and transparent, and promote low emission and climate-resilient development.

A range of further alternative provisions which seek to further refine the principles of climate finance are also presented. This illustrates the complexities of one of the most contentious areas of the agreement. There are no references to the Green Climate Fund (GCF) (established as part of the failed Copenhagen negotiations in 2009) in the draft text for the agreement, despite the GCF’s flagship status in finance. However, it is referred to in the draft Decision text. The draft Decision text refers to ramping up pre-2020 finance and various institutional arrangements for finance. It is suggested variously that the GCF might operate under the guidance of the governing body (see below), aim for a 50:50 balance between mitigation and adaptation over time, and will only be accessible to parties to the agreement that have fulfilled their reporting requirements under the agreement. A short term collective goal of $200bn per year of climate finance committed by developed country parties by 2030 is mooted.

Ensuring that climate-related activities are properly measured, reported and verified has long been a contentious area. On the one hand countries are keen to understand what others are doing. However, countries are also hostile to the idea of being subject to potentially burdensome and invasive scrutiny. The Draft Text contains references to the creation of a “transparency framework” to promote transparency in relation to climate action. Numerous options are set out with respect to the guiding principles, applicability and scope of the transparency framework, with draft Decision text attempting to further flesh out some of the details.

The manner in which any climate change contributions are described and “captured” in the agreement remains contentious, with one option requiring each country to communicate its contribution or alternatively agree to as soon as they enter into the agreement. Countries may also adopt a national schedule which sets out efforts to reduce or limit GHG emissions and details its mitigation commitments / contributions / actions. Various suggestions are set out for how such contributions can be adjusted (for example to ramp up mitigation action). It remains to be determined how any contributions would be set out in the agreement, such as by way of an annex or attachment or in a separate document describing the party’s mitigation targets. Parties must also agree how their commitments will be reviewed. Draft Decision text suggests various options for the timeframe for commitments, including five and ten years, as well suggested requirements for periodic communications. In order to avoid locking in climate commitments, a number of options are set out for ex ante review and further reviews / assessments.

The draft agreement contemplates a governing body for its implementation, together with a secretariat and subsidiary bodies. Various options allowing parties to become a party to the agreement and how it may be enforced have been set out. Entry into force could take some time, and criteria for it to do so (such as a certain number of parties confirming that they accept its provisions) will need to be established.

Draft Decision text also sets out a number of options for how the interim period between reaching the climate agreement and its entry into force may be addressed. This includes working on modalities and procedures and developing guidelines for operationalizing different aspects of the agreement.

It remains to be seen whether the Draft Text will help move along negotiations or lead to delays as parties refuse to move away from the previously published official negotiating text. In any event, there is precious little negotiating time for progress to be made. We will be reporting live from COP21 as the negotiations unfold.