LOOKING FORWARD TO THE PARIS CLIMATE AGREEMENT : ANTYPAS : [2015] 3 ENV. LIABILITY 103 Looking forward to the Paris climate agreement Alexios Antypas Associate Professor, Department of Environmental Sciences and Policy, Central European University, Budapest, Hungary Introduction The Paris Conference of the Parties (COP) to the UN Framework Convention on Climate Change (UNFCCC) that will be held from 30 November to 11 December 2015 is expected to be a significant moment in the evolution of the global climate regime, resulting in a new global agreement on climate change. The new agreement is likely to be universal in scope, thus marking a departure from the Kyoto Protocol s limited commitments for developed country (Annex I) parties only. However, the Paris agreement will not contain binding emissions targets, but rather will rely on voluntary pledges backed up by a possibly stringent monitoring, review and verification (MRV) regime designed to prompt parties to increase their ambitions over time. Pledges submitted to date do not put the world on course to remaining below the 2 degree Celsius limit deemed to be the maximum safe limit by the Intergovernmental Panel on Climate Change (IPCC), but this fact alone does not suffice to predict failure of the regime. In fact, the political breakthrough that a universal regime and strict MRV requirements indicates that the consensus on the need to take action on greenhouse gas (GHG) emissions is strengthening and that recalcitrant actors, most notably the United States and China, are now committing themselves to long-term, sweeping actions to reduce their GHG emissions. In order to judge the political significance of the new agreement and estimate its chances of success it is necessary to keep in mind key facts about GHG emissions as well as defining events in the history of the climate regime. Emissions facts The political dynamics around GHG emissions are changing as the distribution and intensity of emissions change from country to country over time. For the purposes of the negotiations, four values affect the debate the most: historical national emissions, current national emissions, per capita emissions and emissions trends. The United States, with the world s largest economy throughout the 20th century, has emitted 27 per cent of the world s greenhouse gases, whilst the 28 nations of the European Union are responsible for 25 per cent of historical emissions. 1 China accounts for 11 per cent of historical emissions, the Russian Federation for 8 per cent and India for 3 per cent. 2 Current emissions paint a different picture. China has overtaken the US as the world s highest GHG emitter with 24 per cent of yearly emissions, the US accounts for 15 per cent, the EU for 10 per cent and India for 6 per cent. 3 Per capita emissions paint yet another picture, with the world average standing at 6.5 tons, China emitting about 7 tons, the European Union just below 10 tons and the United States at 17 tons. India emits a mere 1.7 tons per capita. 4 All of these figures will change dramatically over the coming decades owing to the trends in GHG emissions. Since 1990, US GHG emissions have increased only slightly, and since 2005 they have remained steady. 5 EU emissions in 2012 were down 19.2 per cent from 1990 levels and Russian emissions are down 33.98 per cent, largely as a result of the collapse of Soviet industry. 6 China s emissions are up nearly 300 per cent in this timeframe, and India s are up nearly 250 per cent. 7 China s CO 2 emissions grow by an annual rate of about 10 per cent, which, if it does not make a rapid transition to cleaner technologies, puts it on track to emitting as much CO 2 by 2040 as the entire world does today. 8 1 World Resources Institute CAIT Climate Data Explorer http:/ /cait.wri.org/. 2 ibid. 3 ibid. 4 The World Bank Climate Data http://data.worldbank.org/ indicator/en.atm.co2e.pc. 5 World Resources Institute CAIT Climate Data Explorer (n 1). 6 Annual European Union Greenhouse Gas Inventory 1990 2012 and Inventory Report 2014 Submission to the UNFCCC Secretariat http://www.eea.europa.eu//publications/europeanunion-greenhouse-gas-inventory-2014. UN Climate Secretariat Summary of GHG Emissions of the Russian Federation available at https://unfccc.int/files/ghg_emissions_data/application/pdf/ rus_ghg_profile.pdf. 7 World Resources Institute CAIT Climate Data Explorer (n 1). 8 Joanna Lewis The state of US China relations on climate change: examining the bilateral and multilateral relationship Woodrow Wilson International Center for Scholars, China Environment Series 2010/2011 https://www.wilsoncenter.org/ sites/default/files/feature%20article%20the%20state%20of %20U.S.-China%20Relations%20on%20Climate%20Change.pdf.
104 [2015] 3 ENV. LIABILITY : LOOKING FORWARD TO THE PARIS CLIMATE AGREEMENT : ANTYPAS These figures indicate that the negotiations for a climate agreement face a formidable obstacle, namely reconciling the conflict between equity and effectiveness in the post- Kyoto era. From the point of view of equity and fairness, the figures for per capita and historical emissions show that the United States and Europe bear the greatest responsibility, with the US still emitting extravagant amounts of greenhouse gases on a per capita level. However, China already far exceeds the US in total annual emissions, and China and India combined exceed the emissions of the US and the EU. If current trends continue, this gap will grow wider year by year. In short, the climate regime cannot succeed if China, and eventually India, do not curtail their emissions, whilst the US and the EU curtail theirs even further. Such a course, although it meets the criterion of effectiveness, may be unfair and fail to abide by the principle of common but differentiated responsibilities (CBDR), which is what developing countries, including China and India, have been arguing and attempting to avoid since the inception of the regime. One further point needs to be made. India s total emissions are still low, accounting for 6 per cent of the global total, and whilst they are rising rapidly large gains against climate change can be made without India taking dramatic steps in the near term. China, on the other hand, accounts for four times India s emissions and its total emissions are also rising rapidly. Speedy action on the part of China is essential for the success of the regime in all timeframes in fact, the future of the climate depends more upon what China does than any other single factor. The US s emissions are large and remain more or less steady, meaning that its participation is both essential to the success of the regime and also that it has a great deal of capacity to improve its performance, especially when one considers that its per capita emissions are more than double that of the EU average when living standards are roughly comparable. Moreover, the EU has been lowering its emissions and is a leader in GHG mitigation; clearly, the EU can be counted on to adopt further emissions cutting targets. The US, on the other hand, was not a party to the Kyoto Protocol and has largely resisted taking on GHG mitigation obligations, and China was exempt from Kyoto as a non-annex I country. A necessary condition for a successful climate regime, therefore, is US and Chinese participation. If the US and China lead, most of the rest of the world will follow. US politics The climate regime will undergo a significant change in Paris, evolving from a targets-based approach applying to a limited number of countries to a pledge-based system applying to all countries. This evolution is a result of the inability of the top- down Kyoto system to meet the standards of both equity and effectiveness, and to resolve the political differences that kept the US out of Kyoto and China from taking significant action on climate change. It must be recalled that the principle of CBDR is the first principle of the Convention and lies at its heart, according to the views of China and other developing countries. This principle is articulated in soft law as Rio Principle 7: States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. Principle 1 of the UNFCCC states that: The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof. 9 For developing countries CBDR and equity have always been at the heart of the climate regime. Parties to the UNFCCC operationalised CBDR at the first COP in 1995 in Berlin, which issued the Berlin Mandate specifying the aims of the negotiations for binding mitigation action, which resulted in the Kyoto Protocol. The Berlin Mandate stated that the developed countries were to elaborate policies and measures and to set quantified limitation and reduction objectives, 10 whilst the negotiating process should [n]ot introduce any new commitments for Parties not included in Annex I. 11 In terms of international law, the international community articulated the principle of CBDR in Rio at the UN Conference on Environment and Development and immediately put it into hard law in the UNFCCC, also unveiled in Rio, and then quickly operationalised the principle within the context of the climate regime to mean that developed countries, designated by their status in Annex I of the UNFCCC, would take mandatory quantified emissions reductions. However, developing countries, designated by their absence from Annex I, would not be 9 UNFCCC art 3(1). 10 UNFCCC Decision 1/CP.1 II(2)(a). 11 UNFCCC Decision 1/CP.1 II(2)(b).
LOOKING FORWARD TO THE PARIS CLIMATE AGREEMENT : ANTYPAS : [2015] 3 ENV. LIABILITY 105 required to take action under the soon-to-be-negotiated treaty. As is now known, this is exactly what happened. However, between the first COP and the concluding negotiations for the Kyoto Protocol, the United States Senate issued an enormously important position statement. In the US the president signs treaties and the Senate, the more deliberative house of Congress, ratifies them. Six months prior to the adoption of the Kyoto Protocol at the third COP, the Senate issued a Sense of the Senate resolution, which was intended as a signal to the administration of what kind of treaty it could expect to have ratified by the Senate. In it the Senate resolved, ie in the sense of the Senate that: (1) United States should not be a signatory to any protocol to, or other agreement regarding, the United Nations Framework Convention on Climate Change of 1992, at negotiations in Kyoto in December 1997 or thereafter which would: (A) mandate new commitments to limit or reduce greenhouse gas emissions for the Annex 1 Parties, unless the protocol or other agreement also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period; or (B) would result in serious harm to the economy of the United States... 12 This resolution passed with a vote count of 95 to 0, with 5 senators not voting. The message sent by the Senate was unambiguous, transcended party lines and has constrained US policy at the international level ever since. The current administration, which is relatively positive towards the climate regime, still faces the same legal and political limits, and by some indications is working to ensure that the Paris agreement does not take the form of a treaty under international law in order to avoid the requirement to submit it to the Senate for ratification, which would of course raise serious constitutional questions and also call into question the political legitimacy of any new agreement in the US. An administration spokesperson told a reporter that: I think it s hard to take seriously from some members of Congress who deny the fact that climate change exists, that they should have some opportunity to render judgment about a climate change agreement. 13 The notion that negotiators will attempt to produce an agreement that does not take treaty form was further corroborated by the French foreign minister Laurent Fabius in June 2015 at the Bonn Climate Conference, where he stated that: We must find a formula which is valuable for everybody and valuable for the US without going to Congress Whether we like it or not, if it comes to the Congress, they will refuse. 14 Anticipating an attempt by the administration to circumvent the Senate by negotiating an agreement that will not be named as a treaty, Republicans have introduced a new draft resolution which states that: it is the sense of the Senate that any protocol to, or other agreement regarding, the United Nations Framework Convention on Climate Change of 1992, negotiated at the 2015 United Nations Climate Change Conference in Paris will be considered a treaty requiring the advice and consent of the Senate. 15 This resolution has not yet been put to a vote but shows that climate change politics in the US are far from settled. The history of this debate in the United States indicates that any administration, Republican or Democrat, must contend with the fact that a large proportion of relevant decision-makers simply do not accept the principle of CBDR and actively work against committing the US to agreements that operationalise it. This explains why even as the US under Obama has once again put the US in the forefront in developing the climate regime, it has emphasised the need to create one that is universal in scope, applying to both developing and developed countries alike. The Copenhagen breakthrough The 15th COP in Copenhagen in 2009 was expected to deliver a new legal framework to succeed the Kyoto Protocol, but instead produced the less formal Copenhagen Accord in which states made GHG mitigation commitments in the form of pledges, which were then to be reviewed by the COP. This pledge and review approach in which nations determine their own commitments diverged sharply from the prescriptive, quantified economy-wide targets set by the Kyoto Protocol. The Copenhagen Accord also for the first time applied the principle of universality applying equally to all nations that the United States Senate had demanded in its Sense of the Senate Resolution in 1995. Far from being the inconsequential and forgotten agreement that critics have made it out to be, the Copenhagen Accord formed the basis 12 SR 98 of the 105th Congress (1997 1998). 13 Earnest House GOP climate deniers not the right people to vote on emissions deal Grabien (undated) https://grabien.com/ story.php?id=25399&utm_source=cliplist20150401&utm_medium= email&utm_campaign=cliplist&utm_content=story25399. 14 Climate Deal Must Avoid US Congress Approval, French Minister Says, The Guardian 1 June 2015, http:// www.theguardian.com/world/2015/jun/01/un-climate-talksdeal-us-congress (accessed August 6, 2015). 15 SE2 290 of the114th Congress (2015 2016).
106 [2015] 3 ENV. LIABILITY : LOOKING FORWARD TO THE PARIS CLIMATE AGREEMENT : ANTYPAS of all future negotiations on a mitigation agreement, and created the model for the agreement that the Paris COP will produce. The Copenhagen Accord was the result of the inability of the negotiators to reconcile the developed country parties political imperative to produce a more inclusive agreement with the developing countries imperative to maintain the principle of CBDR in the post-kyoto era. Whilst reconciling these two imperatives in a prescriptive, legally binding agreement was not possible, the bottom-up approach of the Copenhagen Accord allowed developed countries to claim that the agreement was universal in scope, whilst developing countries could point to the fact that they could determine their own types of action and degrees of mitigation commitment, and were thereby able to maintain the differentiation implied by the principle of CBDR. The Copenhagen Accord legitimised the pledge and review approach in part because it was negotiated by key heads of state and their staffs, who had appeared at the COP expecting to sign an agreement previously reached by their negotiators. The normal COP negotiating process, however, failed to produce an agreement, leaving it to the heads of state either to accept the embarrassing spectacle of having attended a failed international gathering or find an innovative late solution. The Accord was reached between US President Obama and the heads of state of the BASIC countries Brazil, South Africa, India and China. This alliance between the key emitting nations in the world, none of which were parties to the Kyoto Protocol, proved persuasive for the vast majority of the parties to the Convention, all but five of whom endorsed the Accord during the final plenary session. Most important of all was the agreement between China and the United States. The Copenhagen Accord was a breakthrough in several important respects. First, it represented a departure from the Berlin Mandate, being applicable to all parties and making no reference to Annex I and non-annex I countries. Secondly, it brought heads of state into the negotiating process, where they put their personal prestige on the line to forge an agreement, thus elevating the political status of the climate negotiations. Finally, it provided a model for any new agreement that would supersede it: a pledge and review-based system with the possibility of mandatory provisions in areas connected to mitigation commitments directly, most notably in the area of MRV. The Durban Platform The pledges made at Copenhagen have served as the reference point for the commitments to which the parties are willing to commit, but the Accord itself has been abandoned, even while the approach it took has been adopted as the model sought by the developed countries in negotiations for a new agreement. At the 17th COP in Durban in 2011 parties agreed to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties. 16 At Durban, parties also decided to expand the scope of the new agreement to cover not only mitigation but also adaptation, finance, capacity building, technology development and transfer, transparency of action and support, 17 thus making the success of the negotiations less dependent upon the mitigation component alone. The long-standing disagreement between China and the United States over the principle of CBDR erupted again after Durban, with China and the US taking widely differing positions on the meaning of the text of the Durban Platform. In its submission on this issue to the UNFCCC, China made it clear that it interpreted the words under the Convention to imply that there could be no alternative to a Kyoto style agreement that maintained the distinction between developed and developing country parties as represented in the Convention as Annex I and non-annex I parties: The Durban Platform is under the Convention and its work shall be guided by the principles of the Convention. Both its process and outcome shall be in full accordance with the principles, provisions and structure of the Convention, in particular the principles of equity, common but differentiated responsibilities and respective capabilities. The dichotomy between developed and developing countries is the very foundation of the Convention regime, and any attempts to modify the Annexes of the Convention or to re-categorise developed and developing countries would delay progress in the Durban Platform process with nothing to come in the end. 18 On mitigation, developed countries shall undertake ambitious, legally binding and economy-wide quantified emission reduction commitments and targets in accordance with their historical responsibilities and capabilities and as demanded by science. For developing countries, they will take diversified enhanced mitigation actions in the context of sustainable development, consistent with their national circumstances and supported and enabled by adequate finance, technology and capacity building support from developed countries. 19 China s hardline stance on CBDR was countered by the US, which saw Durban as the next step after Copenhagen in its 16 Decision 1/CP.17 Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action para 2. 17 ibid para 5. 18 China s Submission on the Work of the Ad Hoc Working Group on Durban Platform for Enhanced Action (5 March 2013) https:// unfccc.int/files/documentation/submissions_from_parties/adp/ application/pdf/adp_china_workstream_1_20130305.pdf. 19 ibid para 6.
LOOKING FORWARD TO THE PARIS CLIMATE AGREEMENT : ANTYPAS : [2015] 3 ENV. LIABILITY 107 efforts to craft a new climate regime that covered all countries and at best included a looser interpretation of the principle of CBDR. Todd Stern, the US s lead negotiator, put this aim clearly before the world in a speech he gave in 2013: We have, now, an historic opportunity created by the Durban Platform s new call for a climate agreement applicable to all Parties. Some have said those four words in the Durban negotiating mandate are nothing new in climate diplomacy, but make no mistake, they represented a breakthrough because they mean that we agreed to build a climate regime whose obligations and expectations would apply to everyone. We have had a system, the Kyoto Protocol, where the reverse was true, where real obligations applied only to developed countries, listed in the Framework Convention s Annex 1. The point of applicable to all in the Durban Platform was to say, in effect, that this new agreement would not be Kyoto; that its obligations and expectations would apply to all of us. 20 The US China Climate deal In November 2014, the US and China announced a bilateral climate agreement 21 in which, amongst other provisions, the US agreed to reduce its CO 2 emissions by 26 28 per cent below the level of 2005 by 2025. More significantly, China agreed that its CO 2 emissions would peak by 2030 and would not increase after this time. The deal does not specify the level at which emissions peaking would occur; however, in order to achieve a level emissions rate by 2030, China will have to begin introducing ambitious energy transition policies now. In one analysis, if China adheres to this agreement, it will cut its CO 2 emissions by 790 gigatons between 2030 and 2060, which, if emitted, would be more than enough carbon to push the world over the 2 degree Celsius limit. 22 As important as the numbers in the agreement is the fact that the agreement was struck at all. It shows that the US and China fully understand the importance of bilateral cooperation on climate change, and especially on the need to strike a political deal that allows the US administration to help counter domestic critics and preserve a credible claim that the principle of CBDR is being adhered to. The agreement also shows that China is willing to negotiate outside of the G77+China and the BASIC framework. Only time will tell how influential this bilateral agreement will be, but it serves as a strong signal that the US and China are serious enough to enter into international agreement and are likely to come to Paris with the intention of producing a credible new agreement under the UNFCCC. Looking forward to the Paris climate agreement In August 2015 the BASIC countries issued a statement on the role of CBDR in the new climate agreement: We reiterate that commitments under the agreement must be in accordance with the principles and provisions of the Convention. Parties contributions will be nationally determined and reflect each Party s highest possible effort, in accordance with its common but differentiated responsibilities and respective capabilities. Contributions should be comprehensive, addressing mitigation, adaptation and the provision of support by developed to developing countries. We believe that ambition and effectiveness will be achieved by maintaining differentiation among developed and developing country Parties in each element of the agreement. This will enhance participation and efforts by all countries. 23 This statement is considerably milder than China s previous position that an attempt to re-categorize developed and developing countries would delay progress in the Durban Platform process with nothing to come in the end. 24 Moreover, there is no mention of maintaining the Annex I/non-Annex I dichotomy in the new agreement. Given the pledge and review approach that is likely to be adopted in Paris, the parties themselves have the power to maintain differentiation. The political challenges that kept China and developed countries, primarily the US, from reaching a comprehensive agreement in the past, seem to have diminished. The US, for its part, has been emphasising the need for a robust MRV regime in the new climate agreement that includes regular reporting on implementation of mitigation pledges, GHG inventories and other aspects of the agreement under a single system applicable to all parties. 25 20 Todd Stern The shape of the international climate agreement, speech delivered at Chatham House (22 October 2013) https:// www.chathamhouse.org/sites/files/chathamhouse/public/ Meetings/Meeting%20Transcripts/221013stern.pdf. 21 US China Joint Presidential Statement on Climate Change https://www.whitehouse.gov/the-press-office/2015/09/25/uschina-joint-presidential-statement-climate-change. 22 Raymond Pierrehumbert A real deal appearing on slate (17 November 2014) http://www.slate.com/articles/ health_and_science/science/2014/11/obama_s_u_s_china_ climate_agreement_carbon_budget_and_exponential_curves.2.html. 23 Statement by China on Behalf of BASIC at the Opening Session of ADP 2.10, Bonn (31 August 2015) http://www4.unfccc.int/ submissions/lists/ospsubmissionupload/ 213_149_130854954434772208-BASIC_Statement_ADP2-10.pdf. 24 China s Submission on the Work of the Ad Hoc Working Group on Durban Platform for Enhanced Action (n 18). 25 US Submission Certain accountability aspects of the Paris Agreement http://www4.unfccc.int/submissions/lists/ OSPSubmissionUpload/54_99_130618062605395814- Submission%20on%20post%202020%20transparency%20system.docx.
108 [2015] 3 ENV. LIABILITY : LOOKING FORWARD TO THE PARIS CLIMATE AGREEMENT : ANTYPAS The US would like national reports to be submitted biennially and to go through an expert technical review as well as a facilitative examination in which parties deliberate on each other s progress, question each other and share lessons learned. 26 The intention of these provisions is not only to ensure transparency of action but to create a context and incentives for increased mitigation ambition by parties over time. The Paris climate agreement will not contain mandatory emissions reduction targets for parties because there is no formula that would make such targets politically feasible in the United States, China or India. Instead, the negotiating history since negotiations on the Durban Platform began, the submissions made by parties and the draft text of the agreement (which currently contains a wide variety of options under the proposed provisions and thus does not serve as a solid basis for predicting what will occur in Paris) indicate that the final agreement could well be a hybrid one that contains voluntary emissions pledges and mandatory MRV procedures, as well as provisions for the other pillars of the Durban Platform adaptation, finance, capacity building, technology development and transfer, as well as transparency of action and support. If this turns out to be the case, parties will have found a middle way between the top-down but Annex I/non-Annex I Partybased approach of the Kyoto Protocol and the completely bottom-up, voluntary but universal approach of the Copenhagen Accord. The new agreement will probably be applicable to all parties, containing significant obligations for developed and economically advanced developing country parties alike, but will allow for differentiation amongst parties through the nationally determined pledging system. In such a system the quality of the MRV protocols and the transparency of nationally determined targets will be paramount. Until now parties have generally failed to take into account the 2 degree Celsius limit in setting their national targets and, in most cases, have submitted pledges that only apply to the period until 2020. The new agreement must require parties to set longer-term targets in order to be credible. The new agreement may also require more stringent targets for countries that intend to participate in international market mechanisms, thus once again providing an occasion for parties to maintain differentiation, although not necessarily on the Annex I/non-Annex I basis. In short, the Paris climate agreement is likely to contain both bottom-up and top-down provisions, making it a socalled hybrid agreement. It may not take the form of a protocol owing to the general understanding that an agreement that is technically a treaty will not be ratified by the US Senate. 27 The quality of the agreement should be judged on the basis of the stringency of its MRV and transparency provisions, including transparency for both mitigation contributions and finance. Additionally, the agreement should be judged on whether or not it requires parties to submit pledges taking account of the 2 degree Celsius limit and with a time horizon extending well beyond 2020. Finally, the quality of the agreement will also be judged by whether or not it contains rigorous review procedures designed not only to provide transparency but also incentives for increasing ambition over time. 26 ibid. 27 If the agreement does take the form of a treaty and does not win Senate approval, the US administration would still have the capacity to implement the provisions.