Update on COP21 negotiation texts

In September we reported on the then current consolidated draft text for the international climate change agreement at COP21. Since then a number of different texts have been developed, including a much shorter text developed by the Co-Chairs of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) and an updated draft text which emerged from the October negotiating session in Bonn.

It is anticipated that, at the Paris negotiating session due to take place between 30 November to 8 December, the Co-Chairs and negotiators will work from the latter version. Commentary on this latest version (which we shall refer to in this update as the November text) has included UNFCCC Executive Secretary Christiana Figueres stating: “We now have a Party-owned text that is balanced and complete. The challenge for governments is to bring it down to a much more concise and coherent form for adoption in Paris.” French Climate Change Ambassador Laurence Tubiana said: “We have a manageable text for further work in Paris. While much work remains, the text is a good basis for negotiations and negotiations need to start from the first day of the conference.”

In addition to the November text, the UNFCCC has released a Technical Paper to identify closely related concepts, duplication and possible areas for streamlining.

The November text is divided into two sections.

• The first section, comprised of 28 pages, contains a draft Agreement which includes provisions that are appropriate for inclusion in an agreement such as overarching commitments, establishment of long terms goals and mechanisms and standard provisions for an international agreement, such as setting out the administrative arrangements for implementation (draft Agreement).
• The second section sets out a draft COP Decision text (draft Decision). It begins with a section on adoption of the Paris Agreement and establishes an Intergovernmental Preparatory Committee (IPC) to prepare for the entry into force of the Agreement and convenes the Conference of the Parties serving as the meeting of the Parties to the Agreement (CMA), which will implement the Agreement.

The draft Agreement and draft Decision continue to 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 arrangements and the means of documenting climate commitments that the parties may make.

The draft Agreement contains reference to the stabilisation of increases in global average temperatures. Parties continue to disagree on levels of ambition in this regard. Whilst a “below 2 degrees” goal is more likely to be accepted, some parties continue to argue for a target of 1.5 degrees or below.

Alternative or potentially complimentary formulations include making reference to tying in targets with equitable outcomes and / or scientific conclusions. In reality any commitments agreed in Paris are likely to fall short of the objective of stabilizing greenhouse gas concentrations at a level that would prevent dangerous climate change. Indeed, the Synthesis Report produced by the UNFCCC on the aggregate effect of the INDCs submitted as at 30 October 2015 concluded that they would only achieve a reduction of 2.7 degrees by the end of the century.

Though long terms goals may seem very distant from day to day investment decisions, they nonetheless help to set the tone for future policy evolution at a national level.

Our previous legal update [include link] reported on some of the intended nationally determined contributions (INDCs) that have been submitted to date as part of the climate negotiations process. It is likely that INDCs will become formalised as part of the Paris Agreement, however it is not yet clear whether they will become legally binding. There are proposed provisions in the draft Agreement requiring the regular communication and implementation of INDCs.

The draft Decision text welcomes the INDCs submitted to date and invites remaining parties to make their submissions¹. Chrisiana Figueres, has stated that “...INDCs are potential blueprints for investment, each country having identified the sectors that are priority for them. There is much interest now in helping particularly developing countries take these proposals for policies and measures to the point where they can become investment plans. With $90 trillion set to be invested over the next 15 years in infrastructure and energy there is much potential!”.

The draft Agreement provides for a combination of approaches to emissions mitigation, including setting a collective long-term goal, and enshrining individual efforts. The level and ambition of any long term goal and its time horizon remain uncertain. For example, possible dates include both 2050 and 2100 and possible goals include low-emission transformation, carbon neutrality and net zero emissions. It is not clear whether a specific percentage target will be enshrined within the Agreement.

With respect to individual efforts, there is an emphasis on the communication of mitigation contributions/commitments by parties. Many of the historic issues around who should take the lead in mitigation efforts and the varying degrees of responsibility for emissions reductions between developed and developing countries remain reflected in the draft Agreement. As indicated above, it also remains to be seen how any emissions targets or nationally determined mitigation contribution/commitment will be “housed” under the Agreement.

There has always been an emphasis on the role of forests in climate change. The draft Agreement includes an article that provides for the creation of a mechanism to incentivise the reduction of emissions from deforestation and forest degradation (known as REDD+). Whether this could ever evolve to become a market-based mechanism that many private sector actors have hoped for remains to be seen.

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. Different mechanisms for planning and communication of adaptation-related issues are suggested.

To date, the concept of a loss and damage provision has been relatively controversial. The current drafting in the draft Agreement refers to this mechanism as promoting and supporting the development and implementation of approaches to address loss and damage associated with the adverse effects of climate change, including extreme events and slow onset events, in developing countries that are particularly vulnerable to the adverse effects of climate change.

Many commentators hope that a significant commitment to scaling up climate finance results from COP21 as this has been seen as a means of unblocking the climate negotiations. Different formulations remain in the draft Agreement in respect of the obligations for parties to mobilise climate finance from a board range of sources. There are some nods to the ability to use carbon markets, such as a reference to implementing and improving where necessary the “pricing of greenhouse gas emissions”.

Ensuring that climate-related activities are properly measured, reported and verified remains a contentious area. The draft Agreement continues to retain references to the creation of a “transparency framework” to promote transparency in relation to climate action. The issues that parties are still discussing include the role of the transparency mechanism, the information that should be communicated and how information will be scrutinised.

In order for the Paris Agreement to have credibility it is clear that some kind of compliance mechanisms / processes will be needed. The institutional arrangements behind such mechanisms remain to be determined, together with what the consequences of compliance failures might be (such as declarations of non-compliance and the requirement to put in place a compliance action plan).

The UNFCCC has just released the proposed schedule for COP21, which has the negotiations commencing – rather than finishing – with the attendance of Parties’ leaders or relevant Ministers on the opening Monday. This approach is intended to add political impetus to the conference before the formal negotiations commence on the Tuesday.

The schedule currently has the negotiations concluding by 9 December, to enable the mechanics of getting the Agreement translated and reviewed prior to presentation to the COP for consideration and adoption. However, inevitably, it is likely that the negotiations will run past this date and as has happened in previous years, run into the weekend before an outcome is reached. Indeed, we understand that the French Government has booked the conference venue until midnight on Monday 14 December.

We will have a team on the ground during the two weeks of the negotiations and will be providing a regular commentary on events as they unfold. If you would like to follow our commentary, please follow us on Twitter @Nlegal_Global.