The Paris Agreement adopted in Paris on December 12, 2016 now takes its place in the 24-year history of international treaty-making on climate change. In 1992, the United Nations Framework Convention on Climate Change (UNFCCC) declared climate change a “common concern of mankind,” and committed 166 countries to tackling it. Most of them were developing countries who had contributed relatively few emissions. They were nonetheless already experiencing the irreversible, negative effects of climate change like decreasing potable water and land surface area due to sea level rise. Under the Convention’s principle of “common but differentiated responsibilities and respective capabilities” (CBDRRC), developed countries and top GHG emitters, like the European Union and the United States, agreed to take the lead.

Yet progress was slow. Fifteen years later, in 2007, this leadership took the form of the UNFCCC’s Kyoto Protocol, which placed clear GHG emission limits on developed countries while imposing none on developing countries. When the United States refused to ratify, its emissions escaped international regulation along with those from rapidly industrializing developing countries like China, India, and Brazil. Consequently, when negotiations for continuing the Kyoto Protocol beyond its first 2008-2012 period faltered at COP15 in Copenhagen, a new approach to international limits on GHG emissions began to take shape. It would focus more on “bottom up” nationally determined actions and less on “top down” global mitigation targets in order to invite all countries to act on climate change domestically within their respective capabilities. It gained momentum at the next two COPs, culminating in COP17’s Durban Mandate to “develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties” by the end of 2015. This new agreement is intended to take the place of the Kyoto Protocol when its second commitment period ends in 2020.

During five negotiation sessions in 2015, the Parties drafted a “Paris Package” that consisted of a core legal agreement based on a system of nationally determined contributions (NDCs) and COP decisions addressing implementation and political issues. From the Geneva Negotiation Text’s hundreds of pages and thousands of brackets to ADP2-11’s 31-page draft agreement with hundreds of brackets, the Parties clarified how their individual contributions would be internationally measured, reviewed, and verified. These pledges no longer focused solely on mitigation. Consistent with appeals from the developing world, the draft agreement paid almost equal attention to adaptation and finance actions. Likewise, it set out conditions for transparent international reporting. Finally, the draft required periodic “stocktaking” of progress to determine whether national efforts were collectively keeping global temperature rise below the Intergovernmental Panel on Climate Change (IPCC)’s recommended upper limit of 2˚C.

While these intensive negotiations were taking place, this new system of national pledges—that are internationally made and scrutinized for sufficiency—had a trial run. In December 2014, the COP20 decision had invited Parties to submit their INDCs before COP21. By October 1, 2015, 147 Parties had done so, covering approximately 86% of total global emissions. While each INDC derived from national priorities, collectively they included substantive contributions on mitigation, adaptation, and finance, as well as important process pledges on reporting and verification, technology transfer, and capacity building. Developed countries pledged absolute mitigation targets and resources for vulnerable developing countries. Higher income developing countries like Brazil, China, and Mexico made concrete GHG mitigation pledges. Other developing countries described their mitigation and adaptation efforts and goals, but made achieving them conditional on receiving financial assistance. This pledging process prioritized transparency: INDCs were submitted to the UNFCCC, made publicly available at the UNFCCC website, and have been analyzed by the UNFCCC Secretariat, non-governmental organizations (NGOs), and the press. This transparency led to the pre-COP21 understanding that, despite near unanimous participation by Parties, these intended contributions fell short of the IPCC goal. The November 1, 2015 UNFCCC Secretariat report concluded that the INDC pledges—if fulfilled—would slow down the global rate of GHG emissions but not keep the global temperature increase below 2˚C. NGOs like Climate Action Tracker (CAT) and Climate Interactive reached the same conclusion: CAT calculated that achieving the unconditional INDC pledges would still likely lead to a 2.7˚C increase, while Climate Interactive estimated a 3.5˚C increase.

This gap can be seen as a failure of ambition: UNFCCC Parties did not pledge enough in their INDCs to achieve the science-based goal. But knowing this shortfall before the Paris negotiations began was actually a success. The COP19 and COP20 decisions creating INDCs and timing their public submission before COP21 had highlighted the weaknesses of the nationally determined approach. The Parties knew, when negotiating the final form of the new agreement, that creating a system for public reporting and regular review would be critical to incentivizing individual countries to contribute more and do their fair share of mitigation, adaptation, finance, technology transfer, and capacity building.

Thus the Paris Agreement adopted on December 12, 2015 sets up a process for all country Parties to work nationally and collectively toward a global goal. The key building blocks for achieving it are the NDCs that are devised by each country based on its domestic climate change agenda. As Article 3 of the new agreement outlines, “all Parties are to undertake and communicate ambitious efforts as defined in Articles 4, 7, 9, 10, 11 and 13.” This short sentence lays out three critical aspects of NDCs. First, it underscores that all Parties, developed and developing countries alike, are to create and share their NDCs. Second, it expects NDCs to be ambitious. Third, it sets out one way to measure ambition in terms of the content of each country’s contribution: the baseline includes mitigation (Article 4), adaptation (Article 7), finance (Article 9), technology development and transfer (Article 10), capacity building (Article 11), and transparency (Article 13). A second, longitudinal measurement of ambition comes from the Agreement’s expectation that “the efforts of all Parties will represent a progression over time.”

The next, critical component of the Paris Agreement’s legal architecture is international submission of these NDCs for scrutiny by fellow Parties, civil society organizations, and the press. This transparent revealing of domestic climate change plans sets up the dynamic for accountability. Article 14 of the Agreement requires a “global stocktake” every five years to determine how Parties have collectively progressed toward the global objective. Finally, it requires Parties to commit to new, more ambitious NDCs after each review cycle. The following chapters of this COP21 documentation project explore in more detail the logic and mechanics of each key component of the Paris Agreement.

For more detail on how and when this Paris Agreement section changed during the COP21 negotiations, click here.

As Paris negotiations entered their final days, and with increasing pressure from developing countries and civil society groups, the draft Preamble transformed into a strong statement of the Parties aspirations when adopting the Paris Agreement, including several never-before described attributes in the framework of a binding climate change agreement. The Preamble hits on core themes including its alignment to the Convention, differentiation between countries, the urgent and dire need for climate action generally, social considerations when acting to address climate change, and international and cross-sector engagement and cooperation.

While the Preamble does not carry legal authority, it does capture the global conscience that frames how Parties should undertake their NDCs to mitigate and adapt to climate change impacts. It guides Parties to act based upon the principles of the UNFCCC, including the principle of equity and common but differentiated responsibilities and respective capacities (in paragraph 3). It also makes explicit reference to human rights, gender equality, intergenerational equity, and the specific right to health (in paragraph 11); food security (in paragraph 9); and the recognition of Mother Earth and the importance of “climate justice” (in paragraph 13). All of these preambular statements now set a political and moral foundation for the 196 Parties to operationalize the legal obligations of the Agreement.

The Preamble’s acknowledgement of the human rights impacts of climate change is being lauded by some as significant, largely because the intersection between human rights and climate change law has historically been a point of tension in national and international decision-making. Not until 2010 was the importance of respecting human rights ‘in all climate change related actions’ noted by the Conference of Parties to the UNFCCC in the Cancun Agreements.[1] Since then, there has been some additional consideration given to human rights in international climate change law-making via a concerted effort by a coalition of human rights groups to influence the drafting of the Paris Agreement. As a result, the Preamble to the Paris Agreement now explicitly directs attention to the rights of vulnerable populations when implementing climate actions.

The principle of differentiation was also a point of significant negotiation during COP21. Developed countries were largely interested in breaking down the clearly delineated Annex 1 and 2 categorization of Parties used in the UNFCCC and its Kyoto Protocol.  In doing so, they sought to bolster actions by all countries, including developing countries, in climate change mitigation and adaptation actions under the UNFCCC. Developing countries were concerned that if the differentiation lines were blurred too greatly, their vulnerabilities and needs – and the equity principles as delineated under the UNFCCC, would be lost. In its final form, the Preamble acknowledges the need to recognize the objective of the Convention and its guiding principles, including the principle of equity and common but differentiated responsibilities and respective capabilities. Differentiation is also articulated in Article 2, which further emphasizes its importance in implementation of the Agreement. The added reference of ‘in the light of different national circumstances’ to the traditional statement of CBDRRC resulted from the bilateral announcement by China and the United States in November 2014.[2] It sought to soften the hard line drawn between Annex 1 and non-Annex 1 countries since the 1992 adoption of the UNFCCC.  In this way, the Paris Agreement provides a more nuanced structure that recognizes the climate change impacts of industrializing developing counties, softens the lines of differentiation that developed countries were concerned about, and ensures that developing countries concerns about capacity and vulnerability are explicitly addressed.

Action by non-state actors are also provided footing under the Preamble (in paragraphs 14 and 15), acknowledged for their important role in understanding (education and public participation) and helping to solve the climate problem, including through voluntary emission reductions undertaken by business, cities and subnational governments. While the UNFCCC makes reference to public participation and exchange of information in its Article 6, the Preamble supports and furthers the engagement of ‘all levels of government’ and ‘various actors’ in addressing climate change.

In sum, the one-page Preamble enumerates numerous aspirations of equity, human rights, food security, ecosystem integrity, gender equality, differentiation, action by non-state actors, and the protection of Mother Earth and importance of climate Justice. Claudia Salerno, Venezuela’s lead negotiator and facilitator of the Preamble’s informal consultation group, views the Preamble as “quite a revolutionary preamble that will have strong calls for a new revision for climate change as a whole.”[3]

[1] 1/CP.16 Cancun Agreements; Noting resolution 10/4 of the United Nations Human Rights Council on human

rights and climate change, which recognizes that the adverse effects of climate change have

a range of direct and indirect implications for the effective enjoyment of human rights and

that the effects of climate change will be felt most acutely by those segments of the

population that are already vulnerable owing to geography, gender, age, indigenous or

minority status, or disability http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf

[2] https://www.whitehouse.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate-change

[3] http://www.climatechangenews.com/2015/12/14/venezuela-from-bloodied-hand-to-shock-climate-pledge/

Introduction

For more detail on how and when this Paris Agreement section changed during the COP21 negotiations, click here.

In crafting the Paris Agreement’s purpose, the Parties tackled three long-standing politically sensitive and divisive issues, making the resolution of these a significant achievement. A long-term temperature goal serves to honor the UNFCCC’s qualitative objective while using the latest scientific evidence to frame it quantitatively. A conceptual balance is now established between the roles of adaptation and mitigation within the climate change regime going forward. And, differentiation between Parties’ responsibilities and their positions as providers or receivers of support is affirmed, though with a new flexibility that goes beyond the UNFCCC’s long-standing, strict bifurcation. These provide a very strong signal that Parties intend to address the climate crisis broadly, through collective responsibility - in which each is to play as significant a role as possible, while accounting for the differences that exist among all across a spectrum.

Overall, Article 2 sets the stage for the Agreement’s operational articles. Two of those, Articles 4 and 7 (mitigation and adaptation, respectively), reference it directly. It is the fifth shortest of the implementing articles, composed of only 158 words in 2 paragraphs. Within its brevity, Article 2 directly acknowledges the inadequacy of efforts to address global climate change to this point. From this acknowledgement, it establishes and then contextualizes, characterizes and qualifies a single purpose (aim) for the Agreement: “to strengthen the global response to the threat of climate change.” The vehicle identified for pursuing this goal is: “enhancing the implementation of the Convention, including its objective.” The aim and the vehicle are then set into a context arising directly from the Convention’s Preamble and vital to developing countries: one of “sustainable development and efforts to eradicate poverty.” Following that, three process goals stipulate the ‘how’ of pursuing the purpose: a long-term temperature goal, an adaptation goal, and a finance goal. Finally, Article 2 articulates the principles that are to govern the Agreement’s implementation.

This paper examines the implications of the process-based form chosen by Parties to characterize the purpose of their efforts to meet the climate crisis under the new Agreement. It also explores how the three thorny issues that have divided the players in the climate policy regime for years came to be represented as they are within the overall intent and context of the Agreement’s purpose. Ultimately, Parties agreed upon a purpose that has unexpected potential, yet significant limitations.

Process-based over Evidence-Based

A tension between a desire for clear, firm commitments and that for general aspirational ones was reflected in the negotiation to have a stated purpose or not, well before ADP2-11 forwarded the draft agreement to Paris. Article 2, in its final form, does not use the term “purpose,” though it articulates one. In the end, agreement by the Parties to utilize a purpose rather than an objective (specific action or measure undertaken to achieve a goal) to provide an overarching framework for the Agreement allowed the language to be process-based and thus less directive, while still providing direction, and to avoid concrete, evidence-based commitments beyond that specified in the Convention’s qualitative objective. The long-term temperature goal that is a component of Article 2 is, in part, evidence-based; yet, it, too, contains an aspirational phrase: “and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels.” The Parties could not ignore the dangers the Intergovernmental Panel on Climate Change[1] (IPCC) had affirmed with a 2°C rise, but could not agree to commit themselves to a scientifically-based limit more likely to assure meeting the UNFCCC objective.

The basic form of Article 2 is process. By example, Parties selected the phrase “aim to strengthen,” rather than the word “strengthen.” Parties also chose for the Agreement to “enhanc[e] the Convention’s implementation, including its objective,” rather than achieve it. Though, the Agreement is “a (dependent) treaty under international law,”[2] it could have called on the Parties to meet the UNFCCC’s objective. In addition, the process goals created to support the purpose utilize progressive (continuous) verbs, including “holding,” “increasing,” and “making.” In this way, Parties provided themselves enormous flexibility with which to judge their progress.

That the Agreement is an instrument, only, reflects a fundamental compromise. Developing country Parties, especially the Like-Minded Developing Countries (LMDCs), had long expressed opposition to specific commitments, fearing their loss of sovereign rights to develop as they saw fit. The most vulnerable countries - Small Island Developing states (SIDS) and Least Developed Countries (LDCs) - have the most to lose without firm and scientifically-based commitments. Their success in securing support from Annex II countries made inclusion of a quantitative and evidence-based temperature goal achievable, even as the qualitative, process-based form dominated Article 2 overall.

This compromise leaves Parties to grapple with ambiguity as they seek to measure their collective response and try to hold each other accountable in addressing climate change. Yet, this form likely also made it possible for all Parties to the UNFCCC to become Parties to the Paris Agreement. That evidence-based goal of COP21 was achieved.

Three Thorny Issues and Their Resolution

 Long-term Temperature Goal

Bold new language characterizes the quantitative, long-term global temperature goal of Article 2.1(a), one of three goals to be pursued toward the aim of “strengthen[ing] the global response to the threat of climate change.”

Holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;[3]

The language introduces a buffer zone (well below 2°C) and a concrete ambition to not exceed 1.5°C beyond pre-industrial levels, clearly reflecting the evolving climate science, even though not completely embracing it. Its presence in the Agreement and not in a COP21 decision sheds light on an important shift in negotiation alliances and significantly elevates its legal force.

The phrasing is the result of a narrative that began at COP15[4] (2009) in Copenhagen, and ultimately entered the Paris Agreement dialogue indirectly. Parties agreed, at COP16, to reducing emissions such that the increase in global temperatures would not exceed 2°C above pre-industrial levels.[5] They also agreed to periodically review this long-term goal to determine whether it was sufficient to meet the objective of the Convention,[6] and whether the Parties were achieving it. Importantly, the Parties decided at COP16 to consider strengthening the 2°C goal, “including in relation to a global average temperature rise of 1.5°C.”[7] This mandated review[8] happened between June 2013 and February 2015 within a Joint SBSTA/SBI Contact Group. It was supported by a structured expert dialogue (SED) involving more than 70 experts and Parties to “ensure the scientific integrity of the review through a focused exchange of views, information and ideas.”[9]

The SED report, delivered in June 2015,[10] definitively concluded that the 2°C temperature increase limit was not possible with current efforts. Additionally, it recommended a precautionary path: “aiming for limiting global warming as far below 2°C as possible, reaffirming the notion of a defense line or even a buffer zone keeping warming well below 2°C.” (italics added). While not offering the exact language on 1.5°C, the SED report was the source, of the “well below 2°C” phrase, which entered the Agreement’s draft at the end of ADP2-11 in October. And, it captures Parties’ understanding that limiting the temperature increase to 2°C above pre-industrial levels, as established in Copenhagen (COP15), was insufficient to meet the Convention’s objective.[11]

The “well below 2°C” phrasing was a big step toward acknowledging the climate change dangers already present and the peril posed by a 2°C change. Yet, it had too little support to stand alone within Article 2. A relatively new coalition[12] of ultimately more than 100 developed and developing countries supported limiting warming to 1.5°C. Its aggressive pursuit of many and strategic bilateral discussions on this (and other elements of the Agreement) in week 2 secured the additional language of “pursu[ing] efforts to limit the temperature increase to 1.5°C above pre-industrial levels.” This makes clear that most Parties desired a scientifically valid evidenced-based goal, rather than one based on current reality.

Bolstering the evidence-basis of this goal is Decision[13] paragraph 21, which “[i]nvites the Intergovernmental Panel on Climate Change to provide a special report in 2018 on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emissions pathways.” Paragraph 17 of the decision refers to this report in noting concern about the large gap between GHG concentration in the atmosphere with the reported intended nationally determined contributions (INDCs) and that needed to maintain global temperatures below 1.5°C above pre-industrial levels, acknowledging the undetermined amount of GHG concentrations required to limit temperature rise to that increase. The provision of this report is critical to the Agreement’s implementation, since Parties cannot pursue appropriate action in support of a goal inadequately specified in actionable terms.

Parity Between Mitigation and Adaptation; And what about Finance?

(b) Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; and

(c) Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.[14]

With its inclusion in the Agreement’s purpose, adaptation became “a fundamental and central part of the climate change regime.”[15] In fact, elevating climate change adaptation to parity with mitigation in Article 2, and securing recognition within that same article that sufficient finance flows are essential to manifest that parity, mark two milestones developing countries have sought for many years. From its inception, the Convention’s focus was on mitigation, and none of its provisions ensured developing countries would receive predictable and sufficient resources to adequately pursue adaptation and build adaptive capacity. Moreover, the unfolding climate change regime emphasized mitigation action, perhaps to the detriment of adaptation attention until COP16, when the Cancun Adaptation Framework was established.[16] That decision launched what has now become a robust series of funds and work programmes helping developing countries address this critical arena. Yet, the primary focus of that work has been on planning for, rather than implementing adaptation.

The long-standing struggle to raise adaptation’s status to that on par with mitigation fueled the red line that developing countries set down for a balance between mitigation, adaptation and means of implementation in the Paris Agreement. Though the language establishing the ADP (decision 1/CP.17) did not address this balance, Parties had established its fundamental importance by the Lima Call for Climate Action (decision 1/CP.20).[17] Nonetheless, while adaptation consistently accompanied mitigation language in the Article 2 drafts, specific mention of finance flows remained absent until the final days. The inclusion of finance alongside adaptation and mitigation, in the end, reflects the tenacity with which the developing countries held their position, as well as likely support from long-allied developed country Parties.

Both the second and third goals are qualitative with connections to prior UNFCCC elements. The source of phrasing and word choice of the adaptation goal (2.1.(b)), including the stated intention to avoid threatening food production, can be traced, in part, to the Objective of the Convention. The third goal (2.1(c)), that of aligning financial flows with the pathway for achieving the 2.1(b) goal, is consistent with the goals of the Convention’s Financial Mechanism.

Despite the grounding of the language in existing UNFCCC documents, the second and third goals of Article 2 seemingly provide a mix of potentially positive and troubling outcomes with regard to the balance of mitigation and adaptation. A substantive secondary gain is reflected in the language of resilience building and low GHG emissions development in the latter part of the adaptation goal. As a whole, then, this goal addresses the two aspects of adaptation capacity - that of responding to current climate change and that of preparing for future impacts. Additionally, the inclusion of low GHG emissions development links mitigation and adaptation in a way not previously articulated in a legal form.

On the flip side, the reference point for the third goal (2.1(c)) - the financial flow goal - is the adaptation goal, not the purpose, and, only to a portion of it, deliberately avoiding channeling financing toward the “ability to adapt to the adverse impacts of climate change.” The intention in this construction is unclear. One implication is that finance flows are to apply to furthering mitigation while building adaptive capacity to address future climate change impacts (climate resilient development), but not today’s. This implies that developed country Parties may sidestep their responsibilities to support the already high costs of implementing adaptation actions in developing countries.

A more positive perspective might be that the language represents a forward looking approach combining the growing understanding of climate change maladaptation risks[18] with the then expectation that the Agreement would not come into force for another five years. Additionally, the language of 2.1(c) can be considered in step with the IPCC’s work on climate-resilient pathways,[19] and intrinsically tied to the UN’s 2030 Agenda for Sustainable Development (the new global Sustainable Development Goals[20] (SDGs)) and Addis Ababa Action (AAA) Agenda on Financing for [Sustainable] Development,[21] both formalized in 2015, and both highlighted in the COP21 decision Preamble. In particular, the AAA Agenda sets out the financing principles for post-2015 sustainable development, including for climate resilience. The impact of the word choice for Article 2.1(c) is likely to play out in the development of modalities and guidelines under the finance article (Article 9) that will emerge through decisions of the Conference of Parties serving as the meeting of the Parties to the Paris Agreement (CMA), yet this financial flow goal could well serve to open up broader and deeper funding than many might have imagined with the more conventional language of recent years.

Differentiation

This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.[22]

A fundamental challenge to the successful adoption of an agreement at COP21 was the long-standing difference over whether and how to include the principles of equity and differentiation. Its implications for all parts of the agreement were large, and a final compromise was not achieved until quite late in the process. The core question centered on whether the Agreement should continue the historic distinction between developed and developing countries enshrined in the Convention, or reflect a newer reality of widely varying degrees of development across the globe.[23] Developed countries sought approaches such as “dynamic differentiation” and self-differentiation,” while developing countries sought no change, highlighting developed countries’ historical responsibility and failure to meet agreed-to mitigation and supporting responsibilities to address climate change. They further asserted their right to development to make their case.

Negotiations that reflect this division were not limited to Paragraph 2, where differentiation is spelled out. A contest reportedly occurred over the phrasing of Paragraph 1, with the LMDCs pursuing enhancing the Convention’s implementation, the Independent Alliance of Latin America and the Caribbean (AILAC) pursuing furthering it, and the U.S. opposing a distinct purpose article altogether.[24] The Annexes establishing the bifurcation of countries are core to responsibilities assigned within the Convention, a structure developed countries like the U.S. sought to move beyond.

Paragraph 2 of Article 2, stating the principles that are to guide Parties in implementing the Agreement, contains the exact differentiation phrase of the Convention’s Principle 1 (Article 3.1): CBDRRC, plus “in the light of different national circumstances.” This latter phrase originated in the November 2014 U.S.-China joint announcement on climate change.[25] The full phrase of Article 2.2 also appears in the Agreement’s Preamble. The resolution on this language, however, did not come easily.

The ADP’s mandate and its work reflect some ambiguity about how differentiation would be addressed. Importantly, the implementing paragraphs of the decision establishing the ADP (1/CP.17)[26] are absent the Convention’s “principle of common but differentiated responsibilities and respective capabilities,” though the language is clearly provided in its preamble: “Affirming the need to maintain consistency with the principles and commitments of the Convention, particularly that Parties should protect the climate system in accordance with their common but differentiated responsibilities and respective capabilities.” The Lima Call for Climate Action contained expanded differentiation language in its preamble (decision 1/CP.20, para 3),[27] where it added “in the light of different national circumstances” to CBDR+RC. Still, the decision paragraphs did not address differentiation, and the Annex, containing the first round of draft text for the Paris Agreement, offered the original CBDR in the General/Objective section, though qualified it with the word “evolving.” Nonetheless, the new phrase found its way into the Geneva Negotiating Text’s General/Objective options (February 2015).

As noted earlier, the new phrase had come into play with the November 2014 U.S.-China joint announcement on climate change, though its impact was not yet apparent. Its implications echo the Parties’ ambiguity on differentiation. On the one hand, it could represent a link between evolving national circumstances and evolving differentiated responsibilities; while on the other, it could simply affirm “respective capabilities,” since those are determined by national circumstances.[28] One positive expectation with its incorporation is the potential for it to leverage broader participation.[29]

As COP21 was convened, the positioning was resumed with vigor, with some Parties, headed by the group of LMDCs, reportedly pursuing the Convention-based language well into week 2.[30] Resolution required crosscutting issue negotiations through an ad hoc structure created by the COP Presidency. The Comité de Paris[31] convened closed-door meetings and multiple bi-lateral consultations to achieve agreement on this key political issue. The combined top-down / bottom-up approach of the Agreement served to make the expanded phrase acceptable, with “forms of differentiation falling somewhere between a strict categorization of countries and full self-determination.”[32]

Conclusion

The purpose of the Paris Agreement represents the outcome of key political differences that were resolved through the deft shepherding of negotiations by the COP21 Presidency and significant shifts in alliances around the globe. These reflect a determination to produce a universally acceptable treaty with the greatest capacity to enhance implementation of the Convention. The process-based, rather than evidence-based approach of the purpose allowed for all but one Party[33] to agree to the final document. The issue of differentiation is, for now, put to rest, as is the issue of parity between mitigation and adaptation. The issue of how the financial flows aspect of the purpose will be interpreted is an open question. And, the issue of a temperature goal that will achieve the Convention’s objective remains uncertain. These should be followed closely. The latter, the single evidence-based element of the Agreement’s purpose may well be the new treaty’s saving grace, but can it be achieved before the world’s carbon budget window closes?

---

 

[1] http://www.ipcc.ch/index.htm

[2] http://wupperinst.org/fa/redaktion/downloads/publications/Paris_Results.pdf

[3] http://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf

[4] http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf. (Parties agreed in Copenhagen that COP15 only “takes note” of the Accord, without adopting it as an official decision.)

[5] http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf

[6] http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf

[7] http://unfccc.int/science/workstreams/the_2013-2015_review/items/7532.php

[8] http://unfccc.int/resource/docs/2012/cop18/eng/08a01.pdf

[9] http://unfccc.int/science/workstreams/the_2013-2015_review/items/7521.php

[10] http://unfccc.int/resource/docs/2015/sb/eng/inf01.pdf

[11] http://unfccc.int/files/meetings/paris_nov_2015/application/pdf/report_on_minister-led_consultations_on_ambition_including_long-term_goals_and_periodic_review.pdf (The COP21 Presidency, under the ad hoc Comité de Paris, convened informal consultations to address crosscutting issues. One of these covered “Ambition, including the long-term goals and periodic review.” The informal was also tasked with considering the 2013-2015 Review, possibly fueling a cross-fertilization that resulted in SED conclusions/recommendations informing the final language choice for the long-term temperature goal.)

[12] http://www.theguardian.com/environment/2015/dec/08/coalition-paris-push-for-binding-ambitious-climate-change-deal

[13] http://unfccc.int/resource/docs/2015/cop21/eng/10a01.pdf

[14] http://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf

[15] http://www.wri.org/sites/default/files/ACT_Elements_Ideas_FullPaper_FINAL.PDF

[16] http://unfccc.int/adaptation/items/5852.php

[17] http://unfccc.int/resource/docs/2014/cop20/eng/10a01.pdf#page=2

[18] A.K. Magnan, E.L.F. Schipper, M. Burkett, S. Bharwani, I. Burton, S. Eriksen, F. Gemenne, J. Schaar and G. Ziervogel, Addressing the risk of maladaptation to climate change, WIREs Clim Change 2016, 7:646-665, avail for purchase at http://onlinelibrary.wiley.com/wol1/doi/10.1002/wcc.409/full.

[19] http://ipcc-wg2.gov/AR5/images/uploads/WGIIAR5-Chap20_FINAL.pdf

[20] http://www.un.org/pga/wp-content/uploads/sites/3/2015/08/120815_outcome-document-of-Summit-for-adoption-of-the-post-2015-development-agenda.pdf

[21] http://www.un.org/esa/ffd/wp-content/uploads/2015/08/AAAA_Outcome.pdf

[22] http://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf

[23] http://twnetwork.org/climate-change/differentiation-under-paris-agreement-–-tough-fight

[24] http://wupperinst.org/fa/redaktion/downloads/publications/Paris_Results.pdf

[25] https://www.whitehouse.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate-change

[26] http://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf#page=2

[27] http://unfccc.int/resource/docs/2014/cop20/eng/10a01.pdf#page=2

[28] http://www.c2es.org/docUploads/differentiation-brief-06-2015.pdf

[29] http://www.c2es.org/docUploads/differentiation-brief-06-2015.pdf

[30] http://twnetwork.org/climate-change/differentiation-under-paris-agreement-–-tough-fight

[31] http://unfccc.int/meetings/paris_nov_2015/in-session/items/9320.php#2

[32] http://www.c2es.org/docUploads/differentiation-brief-06-2015.pdf

[33] http://www.bbc.com/news/live/science-environment-34922775, at 18:47.

 

Introduction

For more detail on how and when this Paris Agreement section changed during the COP21 negotiations, click here.

Mitigation is the UNFCCC’s most developed approach to addressing climate change and its negative impacts on society. For the past twenty years, the COP, under the UNFCCC, has focused almost exclusively on how to mitigate climate change. Only in the Paris Agreement have other methods of confronting climate change been accepted by a consensus of UNFCCC member States. These newer methods include adapting to climate change and supporting countries that already are, or will in the near future, face major threats to their survival from climate change effects. Given this long history, the mitigation articles of the Paris Agreement were deeply contested by the Parties during negotiation, notably over the nature and scope of the nationally determined mitigation contributions, the role of CBDRRC in making them, the use of land sinks and market mechanisms, and how to measure the ultimate success of decreasing GHG emissions. Ultimately, mitigation became the most detailed element in the Paris Agreement because of its lengthy history and pre-existing ground rules, which the Parties had to work with, and around, as they developed a new text and new commitments.

By the end of COP21, the Parties agreed to address mitigation in three separate articles. Article 4 houses the majority of the text on mitigation, covering how it functions to reach the global long-term temperature goal established in Art. 2. This article is 19 paragraphs long, making it the longest article in the entire agreement. Article 5 focuses on the role of land use, specifically how Parties will value GHG sinks and reservoirs when making their mitigation contributions. Finally, Art. 6 discusses different cooperative approaches and market mechanisms that States may choose to use when making their mitigation contributions. The mitigation language of the Paris Agreement is strengthened by the COP21 Decision. Paragraphs 22 to 40 of the Decision text provides specific procedural details that operationalize the Agreement.

This section of the Paris Agreement Pensieve addresses Article 4, notably the global goals of mitigation, national determinations of mitigation contributions and differentiation of them, and global accountability for national actions.

Global Goals of Mitigation

Art. 4 addresses the long-term temperature goal established in Art. 2 by explaining that all Parties aim to reach “global peaking of GHG emissions as soon as possible.”[1] However, developing countries are permitted to peak their GHG emissions later than developed countries because the most affordable methods of development inherently release GHGs. Despite developing countries’ need to pursue economic development, all Parties have agreed to undertake rapid reductions of GHGs as soon as they are able to peak their emissions.

Reducing GHG emissions will lessen the effects of climate change because the States will then be able to strike “a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century….”[2] Globally, the goal is for States to emit a quantity of GHGs that equals what can be absorbed by sinks and reservoirs. If this goal is successfully achieved, the effects of climate change will eventually decrease or plateau because additional GHG emissions will no longer be added to the Earth’s atmosphere. Ultimately, determining which States can continue to emit GHGs and how much they can emit will be determined “on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.”[3] The Parties’ recognition of equity implicitly refers to the Convention’s principle of CBDRRC, which differentiates between Parties based on their relative wealth and historical responsibility for emitting large quantities of GHGs. Earlier in the COP21 negotiations, Parties of the G77 and LMDCs were advocating for an explicit mention of “historical responsibilities,” but ultimately this idea was subsumed under the general reference to “equity.”[4]

Throughout the course of COP21, the language of the global long-term mitigation goal evolved. At the start of COP21, Art. 4.1 stressed the “collaborative” and “collective” nature of mitigating climate change. This language was deleted from the final version of the Paris Agreement. This textual evolution indicates that the global long-term mitigation goal is a composite of discrete, national contributions, rather than a collective element uniting all State Parties as one entity.

The Parties also debated over how they would measure their mitigation goal, with some Parties advocating for “climate neutrality” and others pushing for a “zero global GHG emissions” goal.[5] Before COP21 commenced, many States including Germany, the United States, and Japan had all backed the idea of complete decarbonization.[6] This view was unpopular with other States because it implied a definitive end to fossil fuel use.[7] Conversely, the language of “climate neutrality” and what was ultimately agreed to, namely, “to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases”[8] allows for continued use of fossil fuels as long as the amount of GHGs emitted end up equaling what can be absorbed by the global reservoirs and sinks.

National Determinations of Mitigation Contributions

Details explaining how individual State Parties will mitigate climate change by balancing emissions with the global absorption capacity are contained in Art. 4.2 and 4.3. Under these provisions, all State Party’s “shall prepare, communicate and maintain successive nationally determined contributions….” that the State intends to achieve. No State Party is exempted from this requirement. Notably, under the Paris Agreement all State Parties choose their own domestic mitigation measures, with the hope that all of the domestic measures will work together to achieve the global mitigation objective. States are not required to reduce GHG emissions by a certain percentage or in a certain sector. Rather, States are expected to choose for themselves the best options for reducing their GHG emissions.

When preparing their nationally determined contributions (NDCs), para. 27 of the COP21 Decision offers guidance on what information States should include. Namely, (1) quantifiable information on the Party’s reference point, such as a base year, (2) time frames or periods for implementation of the contribution, (3) the scope and coverage of the contribution, (4) details on the planning processes, assumptions, and methodological approaches used to develop the contribution, including figures used to estimate and account for anthropogenic GHG emissions and removals, and (5) how a Party considers its NDC as fair and ambitious, in the light of its national circumstances, and how the Party’s contribution successfully helps achieve the Convention’s Art. 2 objective. Additionally, the COP has asked the Ad Hoc Working Group on the Paris Agreement (APA) to develop guidance for States on what features and information their NDCs should include. This guidance will “facilitate clarity, transparency and understanding of the [NDCs],” by streamlining the Parties’ NDCs. [9] Parties are invited to communicate this information in their first NDC no later than when the Party submits its instrument of ratification, acceptance, approval, or accession to the Paris Agreement.[10]

The timing of NDC communication can become complicated quickly, for given the nature of nationally determined contributions, Parties have had discretion over when they choose to ratify the PA, as well as the specific timeframes for achieving mitigation pledges. Parties whose INDC contained a timeframe up to 2025 are “urged” to communicate by 2020 a new NDC and continue to do so every five years thereafter.[11] Parties whose INDC contained a timeframe up to 2030 are “requested” to communicate a new INDC by 2030, and to continue doing so every five years thereafter.[12] All State Parties must submit their NDCs to the secretariat at least 9–12 months before the relevant COP session, so that the secretariat may provide a synthesis report to all Parties at the COP session.[13] The fact that the secretariat will be creating and providing a synthesis report on all Parties’ NDCs increases the overall transparency and accountability of the Paris Agreement. Parties are creating their own contributions, but their work is being checked and double-checked by their fellow member States and the COP in its entirety.

In addition to establishing the Party obligation of creating a first and future NDCs, all Parties to the PA also, “shall pursue domestic mitigation measures with the aim of achieving the objectives of such contributions.”[14] This obligation requires direct action from the Parties. Parties cannot satisfy their duties under the PA by merely pledging to reduce the GHG emissions. Rather, all Parties must be able to demonstrate that they are working at the domestic level to achieve the mitigation goals of their pledges.

All States are required to increase their mitigation contribution over time.[15] During each successive NDC, a State must progress beyond its current mitigation contribution. Moreover, a State’s mitigation contribution must reflect the State’s “highest possible ambition,” recognizing that this ambition will not be the same for all States.  Under the PA, States have the freedom to choose how to mitigate climate change, but they must actually make contributions that reflect their capabilities. Furthermore, under Art. 4.11, a Party may adjust its existing nationally determined contribution at any time if the adjustment will enhance the Party’s level of ambition. The State does not need to wait until five years have passed to increase its mitigation ambition. Conversely, Parties are never permitted to decrease their mitigation ambition.[16]

All Parties are expected, or should, “strive to formulate and communicate long-term low greenhouse gas emission development strategies….”[17] The expectation that Parties will attempt to develop sustainably or develop with a low-carbon footprint aligns with the principles expressed in Art. 2 of the Paris Agreement. In Art. 2, the entire Agreement is framed in the context of sustainable development and efforts to eradicate global poverty. The Paris Agreement intends to create a workable system for the future, so that we are not simply fighting off climate change for another 50 years, but rather we are re-evaluating our approach to the world and its resources so that we can live and develop in a way that does not create a climate problem. The COP21 Decision reinforces those goal by inviting Parties invited to communicate their mid-century, long-term low GHG emission development strategies by 2020, which will be published on the UNFCCC website. This invitation to the Parties is noteworthy because it speaks directly to the goal of the Paris Agreement and to Party accountability and transparency.

A Party can use mitigation co-benefits from its adaptation actions or economic diversification plans to help contribute to its nationally determined mitigation contribution.[18] This provision offers States flexibility in reaching their mitigation NDCs. Through “economic diversification plans,” States can diversify their investments that have traditionally supported the fossil fuel industry into other market sectors that do not emit GHGs and this refinancing will count towards the State’s mitigation goal. This provision is especially important for the Arab Group because the Arab group has historically developed its economy through the fossil fuel industry, so transitioning to an economy less dependent on GHG-emitting industries is an important step for these States in order to effectively combat climate change.

Under the Paris Agreement, Parties are permitted to act jointly and as regional economic integration organizations. This provision is a continuation of existing policy under the UNFCCC and Kyoto Protocol.[19] As long as the Parties have reached an agreement to act jointly under Art. 4.2, they can notify the secretariat of the terms of their agreement.[20] The Parties’ agreement must include emission levels allocated to each Party within the relevant time period for the contribution. When Parties agree to act jointly, each Party is responsible for its emission level contained in the agreement sent to the secretariat.[21] If joint Parties act under the framework of, and together with, a regional economic integration organization that is itself a Party to the Paris Agreement, then each State “of the regional economic integration organization individually, and together with the regional economic integration organization, shall be responsible for its emission level as set out in the agreement communicated [to the secretariat]….”[22]

Differentiation in Parties’ Nationally Determined Contributions 

Even though the nature of national determination allows for differentiation, several provisions in Art. 4 recognize the UNFCCC’s core principle of common but differentiated responsibilities and respective capabilities (CBDRRC) in light of countries’ variable state of development and capacity to mitigate. For example in Art. 4.3, a State’s highest possible ambition is determined based on its CBDRRC and in light of different national circumstances. CBDRRC is a long-standing UNFCCC principle that has existed since the Convention was established. This principle differentiates between States based on their available resources, and has historically distinguished commitments for developed countries compared to developing countries.

Conversely, the language of differentiation contained in the phrase, “in the light of different national circumstances” is new to the Paris Agreement, and indicates that differentiation between States transcends the developed and developing country dichotomy embodied by the Kyoto Protocol’s annexes. “In the light of different national circumstances” is arguably broader than how CBDRRC has come to be understood and thus expands the scope of differentiation in relation to mitigation contributions under the Paris Agreement. Interestingly, this same language was used in the U.S.-China Joint Announcement on Climate Change in November 2014. Ultimately, this language has been viewed as a way for advanced developing countries, such as China, to remain off the Annex I list, while still contributing more to mitigation goals than other typical Non-Annex I Parties.

Differentiation is also inherent in the PA’s approach to economy-wide mitigation goals. Article 4.4 explicitly distinguishes developed countries from developing countries by explaining that developed countries should continue taking the lead on mitigating climate change by undertaking economy-wide GHG emission reduction goals. Under this language, developed country Parties are expected to lead economy-wide mitigation goals, and developing countries should continue enhancing their mitigation efforts in order to move towards economy-wide emission reduction targets as their national circumstances permit. Least developed countries and small island developing States will receive more flexibility and understanding as they develop their mitigation contributions because of the special circumstances in these States.[23] This flexibility and understanding helps States who may not be able to make large mitigation contributions or who may be unable to successively progress their mitigation contributions. Flexibility is essential for these States because they often possess extremely limited resources and many are already battling severe climate change effects.

Supporting the special need of countries that are often the most affected by climate change and the least able to act to prevent is covered in Art. 4.5 and 4.6. Art. 4.5 creates an obligation on State Parties to provide support to developing countries, so that these countries are able to implement the measures required under Art. 4. Here, the text explains that this enhanced support is necessary to allow for higher ambition amongst developing country Parties. While Art. 4.5 is crucial for developing Parties, the text is seriously flawed. Art. 4.5 creates an obligation on other Parties to provide support through its use of the word “shall, ” but the text is unclear as to who the obligation rests upon. There is no actor for the “shall” verb. This ambiguity is problematic because it is possible that every State Party will deny that it is their particular duty to help support the developing States. If this happens, the developing States will be left without a reliable source of support. Moreover, in earlier versions of the Paris Agreement the noun had been “Developed country Parties” which makes the deletion even more ominous because the deletion indicates that Developed country Parties did not want to be responsible for this duty.[24] Importantly, the obligation to provide support to developing countries should be read in conjunction with Art. 9 statements on financial support. In Art. 9, “[d]eveloped country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation in continuation of their existing obligations under the Convention.”[25] And all “[o]ther Parties are encouraged to provide or continue to provide such support voluntarily.”[26] These two paragraphs from Art. 9 help inform who the actors should be in Art. 4.5. Namely, developed country parties to the extent that they were already obligated to provide support before the PA, and all other Parties who voluntarily choose to help provide support.

Global Accountability for National Actions

State transparency and accountability is ensured under Art. 4 through two processes. First, Arts. 4.8–4.10 and 4.12 govern how States communicate their mitigation contributions to the other States. A transparent communication process increases accountability between the States by allowing States to hold one another responsible for accomplishing what they say they will do and by allowing one State to take certain actions in reliance on other States’ communicated actions. Second, Art. 4.13–4.15 details how Parties will account and present their NDCs to the COP serving as the meeting of the Parties to the Paris Agreement. This accounting process ensures that States are meeting the overarching mitigation goals and expectations of the Paris Agreement.

All Parties ”shall” provide information that is “necessary for clarity, transparency, and understanding”[27] of their mitigation contributions and developing the specifics of this information has been delegated by the COP to its subbodies. The Subsidiary Body for Implementation (SBI) is instructed to “develop modalities and procedures for the operation and use of the public registry….”[28] for consideration and adoption by the COP serving as the meeting of the Parties to the Paris Agreement at its first session. The secretariat is requested to make an interim public registry available during the first half of 2016 for the recording of nationally determined contributions submitted. Additionally, the Ad Hoc Working Group on the Paris Agreement (APA) is asked to provide emissions accounting guidance for the Parties, so that Parties (1) accurately account anthropogenic emissions and removals by using IPCC methodologies and metrics; (2) possess methodological consistency, including constant baselines, between their communication and implementation of their NDCs; (3) successfully include all anthropogenic emissions or removals in their NDCs and, once a source, sink, or activity is included, to continue including it; (4) provide explanations concerning why categories of anthropogenic emissions or removals are excluded from their NDCs.[29]  The COP stated that all Parties “shall” apply this guidance to their second and subsequent NDCs.[30]

Moreover, to increase Party accountability, timing requirements are imposed on all Parties. Indeed, all Parties are required to communicate a NDC every five years. The exact timeframes controlling when Parties will submit their NDCs is contained in the COP 21 Decision.[31] In addition, the COP will hold a global stocktaking on all of the INDCs, and in response each Party’s successive communication of their next contribution must be informed by the outcomes of this global stocktake.[32] Finally, all of the communicated NDCs will be recorded in a public registry maintained by the secretariat, so that all Parties and members of the public may access all Parties’ mitigation contributions.[33]

In addition to the provisions guiding how a contribution is communicated and stored, State accountability is also preserved through an accounting process. Article 4.13 explains that all Parties are required to account for their NDCs. During this accounting process, Parties must “promote environmental integrity, transparency, accuracy, completeness, comparability and consistency, and ensure the avoidance of double counting.”[34] The specifics of what each Party must explain during the accounting process will be guided by adopted decisions from the COP serving as the meeting of the Parties to this Agreement.[35] This provision is notable because the parties are giving authority to the COP to create binding decisions on them. Generally, the UNFCCC COP Decisions are viewed as soft law, or guidelines. But, the COP can choose to make a Decision binding, which is exactly what the Parties are doing at various points throughout the PA, including in Art. 4.9, 4.13, and 4.14.

When creating their NDC and accounting for it, Parties should consider, as appropriate, existing methods and guidance under the Convention for recognizing and implementing mitigation actions concerned with anthropogenic emissions and removals. Meaning, that when possible Parties to the Paris Agreement should use existing mitigation methods and guidance in their nationally determined contributions, rather than creating wholly new processes. Using existing methods fits the mitigation of the Paris Agreement into the larger UNFCCC context and allows Parties to better understand how another Party is mitigating climate change during the accounting process.

Finally, when creating and accounting for their nationally determined mitigation contributions, all Parties are required under Art. 4.15 to take into account the concerns of Parties with economies most affected by the impacts of response measures, especially when the impacted Parties are developing country Parties.[36] This provision ensures that Parties consider and avoid mitigation actions that would negatively affect another State party. In paras. 33 and 34 of the COP 21 Decision, the SBI and the Subsidiary Body for Scientific and Technological Advice (SBSTA) are instructed to handle issues related to response measures, which were mentioned in Art. 4.15 of the Paris Agreement. The COP explains and decides that the forum on the impact of the implementation of response measures will continue under the subsidiary bodies, and will serve the Paris Agreement. The forum on the impact of response measures was an important point of negotiation for many developing country Parties at COP 21. Many of these Parties view mitigation actions by developed country Parties, or “response measures,” as detrimental to developing countries in a number of ways. By incorporating a forum on response measures into the PA, the Parties have an outlet or home in the Subsidiary Bodies where they can continue discussing this issue. Additionally, the subsidiary bodies shall recommend modalities, work programmes, and functions of this forum to the COP in order to address the effects of response measures under the Agreement and to enhance cooperation between Parties concerning the exchange of information, experiences, and best practices to raise all Parties resilience to mitigation response measures.

[1] Paris Agreement Art. 4.1.

[2] Paris Agreement Art. 4.1.

[3] Paris Agreement Art. 4.1.

[4] See FCCC/ADP/2015/L.5 Art. 3.1 (noting the bracketed language of “[Equitable distribution of a global carbon budget based on historical responsibilities and [climate] justice].”

[5] http://www.carbonbrief.org/cop21-experts-discuss-greenhouse-gas-emissions-neutrality.

[6] http://www.carbonbrief.org/cop21-experts-discuss-greenhouse-gas-emissions-neutrality.

[7] http://www.carbonbrief.org/cop21-experts-discuss-greenhouse-gas-emissions-neutrality.

[8] Paris Agreement Art 4.1.

[9] COP 21 Decision, paras. 26 and 28.

[10] COP 21 Decision discusses timing of NDCs starting at para. 22.

[11] COP 21 Decision para. 23.

[12] COP 21 Decision para. 24.

[13] Cop 21 Decision para. 25.

[14] Paris Agreement Art. 4.2.

[15] Paris Agreement Art. 4.3.

[16] Paris Agreement Article 4.11.

[17] Paris Agreement Article 4.19.

[18] Paris Agreement Art. 4.7.

[19] See FCCC/TP/2000/2 (discussing the role of REIOS in the Kyoto Protocol and the EUs involvement as an REIOS).

[20] Paris Agreement Article 4.16.

[21] Paris Agreement Article 4.17.

[22] Paris Agreement Article 4.18.

[23] Paris Agreement Art. 4.6.

[24] See FCCC/ADP/2015/L.5 Art. 3.3 Option 2 & FCCC/ADP/2015/L.6/Rev.1 Art. 3.3 Option 2.

[25] Paris Agreement Art. 9.1.

[26] Paris Agreement Art. 9.2.

[27] Paris Agreement Article 4.8.

[28] COP 21 Decision para. 29.

[29] COP 21 Decision para. 31.

[30] COP 21 Decision para. 32.

[31] Paris Agreement Article 4.10.

[32] Paris Agreement Article 4.9.

[33] Paris Agreement Article 4.12.

[34] Paris Agreement Article 4.13.

[35] Id.

[36] Paris Agreement Article 4.15.

For more detail on how and when this Paris Agreement section changed during the COP21 negotiations, click here.

Article 5 of the Paris Agreement considers how member States value GHG sinks and reservoirs, including forests. Under Art. 5, all States should recognize the importance of GHG sinks and reservoirs, specifically including forests, and all States are encouraged to commit to conserving and enhancing these resources as appropriate. This article is only 2 paragraphs long, and it does not require direct action from any Parties. Rather, the first paragraph explains that Parties should conserve and enhance GHG sinks and reservoirs. But, this conservation and enhancement is only necessary when States deem it as “appropriate.” Importantly, Art. 5.1 lists forests as a specific example of a GHG sink or reservoir, but the article is not limited to the conservation and enhancement of forests. Article 5.2 encourages Parties to implement and support the existing REDD+ framework in developing countries through a variety of approaches, including traditional policy and carbon-incentivizing approaches as well as non-traditional joint mitigation and adaptation approaches and incentivizing non-carbon benefits associated with these joint approaches. One example of incentivizing non-carbon benefits includes allowing the supporting State to count improved health outcomes or improved agricultural production as a carbon equivalent for that State’s NDC.[1] Ultimately, the purpose of Art. 5.2 is to preserve REDD+ and other pre-existing UNFCCC decisions and efforts aimed at forest conservation and enhancement.

Article 5 does not require any State action. Rather, the article simply explains that (1) States should enhance and preserve GHG sinks and reservoirs and (2) States are encouraged to implement and financially support mechanisms that already exist under the UNFCCC. What is now Art. 5 of the Paris Agreement was an important topic of negotiation in Paris. Despite its weak authority in the final agreement, many developing States, especially those in South America, insisted on its survival. Originally, these States wanted to ensure that the value of forests was directly addressed in the Paris Agreement and that a mechanism was developed that would be stronger than the existing REDD+ framework in ensuring that forests are properly counted as GHG sinks and reservoirs, and that States with large forests receive sufficient support to adequately conserve and enhance this important resource. Interestingly, Brazil was opposed to strengthening the REDD+ framework under the Paris Agreement. Presumably, Brazil resisted REDD+ in the Paris Agreement because Brazil already has a highly developed forest preservation program, and does not want the program to change.[2]

Moreover, developed Parties, such as the United States and European Union, were also interested in preserving the use of forests as a tool for meeting GHG mitigation goals. These Developed country Parties want to count their land use, land-use change and forestry (LULUCF) activities in their mitigation and adaptation pledges. More specifically, the United States needs to be able to count its LULUCF activities in order to meet its 2025 pledges. Currently, the major debates about the role of forests and other carbon sinks center on which methodologies should be used to account for these sources. Ultimately, the Subsidiary Bodies will consider the different proposed methodologies and help develop a compromise for all of the State Parties to adopt and follow in their NDCs.

As negotiations progressed, it became clear that the creation of a new mechanism beyond the existing REDD+ framework was not a possibility. In response, developing countries compromised and Art. 5 transformed from a vehicle for a new mechanism into a vehicle of reiteration or a placeholder for future development under the subsidiary bodies. Thus, the purpose of Art. 5 is to ensure that the States do not move backwards in relation to forests and other GHG sinks and reservoirs. Including Art. 5 in the Paris Agreement ensures accountability amongst all States. While developing States cannot argue that other States are required to help with forest conservation, the developed States and other developing States cannot excuse themselves from the issue all together.

The COP 21 Decision reflects on the importance of providing financial support for alternative policy approaches, such as the joint mitigation and adaptation approaches discussed in Art. 5.2 of the Paris Agreement as well as the importance of providing support to traditional REDD+ projects.[3] Unfortunately, all of the action language in the COP 21 Decision relating to Art. 5 is weak, with the Parties recognizing the importance of funding the initiatives covered in Art. 5 of the Paris Agreement, not that any Parties actually shall provide this financial support. Thus, while the financing details of Art. 5 are briefly discussed in the COP 21 Decision, it is unclear as to which Parties will actually financially support the forestry conservation and enhancement projects listed in Art. 5.

 

 

[1] See http://unfccc.int/resource/docs/2014/smsn/ngo/405.pdf (listing non-carbon benefits associated with REDD+).

[2] See https://www.boell.de/en/2015/11/27/brazil-and-redd-debate.

[3] COP 21 Decision para. 55.

For more detail on how and when this Paris Agreement section changed during the COP21 negotiations, click here.

Article 6 is the third of three mitigation articles in the Paris Agreement. This article focuses on the use of market mechanisms and other cooperative approaches in achieving nationally determined mitigation contributions. One negotiator described this nine-paragraph article as “both a major success and a minor miracle.”[1] From the time the Kyoto Protocol entered into force, tension has existed around developed countries using markets to meet GHG reduction targets rather than focusing exclusively on domestic policies and mechanisms to curb emissions.  Despite this tension, two of the flexibility mechanisms from the Kyoto Protocol, the Clean Development Mechanism (CDM) and Joint Implementation (JI), have developed modalities, procedures, and governance mechanisms for carbon markets.[2]  These existing market mechanisms are well entrenched among the COP Parties:  the International Emissions Trading Association (IETA) reports that 67 Parties noted in their INDCs an intent to use markets when meeting their mitigation pledges, another 17 Parties noted consideration of using them, and 7 more noted interest in using them in the longer term.[3] The UNFCCC Secretariat’s most recent INDC synthesis report highlights that “some Parties stressed that the use of market-based mechanisms is important for the cost-efficiency of the mitigation effort and for enhancing the level of ambition.” [4]

Yet discomfort around market mechanisms continues and Article 6’s structure and language reflects it. Parties have been discussing ideas for non-market approaches since 2007 when the Bali Action Plan was adopted. Today, non-market ideas are pursued under the SBSTA agenda items on Non-Market Approaches, Framework for Various Approaches (FVA), and New Market Mechanism (NMM).  Intially the market mechanisms in Article 6 were dispersed throughout the Paris Agreement, as short references in various draft articles,[5] but by December 12 these market references had been collected and merged into a full-blown, distinct article, which was presented by the COP presidency in the last draft of the agreement.  During the course of negotiations, direct references to the phrase “market-based mechanisms” were omitted and the phrase “internationally transferred mitigation outcomes” (ITMOs) was coined. In the end, the Paris Agreement recognizes that ITMOs, along with “integrated, holistic and balanced non-market approaches,” may be used by all Parties when acting on their mitigation NDCs.

Cooperative Approaches Overall

Article 6.1 establishes that cooperative approaches to mitigation among Parties are generally acceptable under the Paris Agreement as long as they are voluntary and seek to ensure ambitious reductions that promote sustainable development. Article 6.1 clarifies that Parties “recognize that some Parties choose to pursue voluntary cooperation … to allow for higher ambition in their mitigation and adaptation actions and to promote sustainable development and environmental integrity.”[6]  This first paragraph plays the role of “chapeau” for the entire article, serving as the umbrella for a variety of forms of cooperation, including the three outlined below.

International Trading of Mitigation Outcomes

“Internationally transferred mitigation outcomes” or ITMOs[7] are established in Article 6.2 as one form of cooperation. The importance of voluntary participation in ITMOs specifically is emphasized in Article 6.3, by delineating that they “shall be voluntary and authorized by participating Parties.”  Building on this base, Article 6.2 mandates that when ITMOs are chosen as the cooperative approach, Parties “shall …promote sustainable development and ensure environmental integrity and transparency, including in governance, and shall apply robust accounting to ensure, inter alia, the avoidance of double counting.”

To ensure that no double counting occurs, the Paris Agreement binds Parties to using accounting guidance that a future COP will devise. Decision 1 of COP21, paragraph 36, requests thatthe Subsidiary Body for Scientific and Technological Advice (SBSTA) “develop and recommend” this guidance for consideration and adoption by the COP at the Paris Agreement’s first session.

The Creation of a Mitigation Mechanism

Article 6.4 of the Paris Agreement establishes “a mechanism to contribute to the mitigation of greenhouse gas emissions and support sustainable development” under the COP’s “authority and guidance.” This mechanism “shall be supervised” by a COP-designated body and “shall aim” to promote GHG mitigation while fostering sustainable development, to incentivize public and private participation, to contribute to emission level reductions in the host Party while also helping another Party fulfil its NDMCs and  to “deliver an overall mitigation in global emissions.” To ensure that this mechanism avoids double counting, Article 6.5 states that it “shall not be used to demonstrate achievement of the host Party’s nationally determined contribution if used by another Party to demonstrate achievement of its nationally determined contribution.”

To operate this mechanism in a financially sustainable way, Article 6.6 mandates that the Paris Agreement COP “shall ensure that a share of the proceeds from activities … is used to cover administrative expenses as well as to assist developing country Parties that are particularly vulnerable to the adverse effects of climate change to meet the costs of adaptation.” Article 6.7 also requires that this COP “shall adopt rules, modalities and procedures for the mechanism.”  Consequently, paragraph 37 of Decision 1 of COP21 recommends that the COP base these rules on a Party’s voluntary participation; “real, measurable, and long-term” mitigation reduction benefits; specific scopes of activities; emissions reductions that are “additional to any that would otherwise occur”; verification and certification of these emission reductions by “designated operational entities”; and on experience gained from similar mechanisms under the UNFCCC and Kyoto Protocol.  Paragraph 38 requests SBSTA to develop and recommend rules, modalities and procedures for the mechanism for the first Paris Agreement COP to consider and adopt.

A Framework for Non-Market Approaches

Article 6 closes by “recogniz[ing] the importance of integrated, holistic and balanced non-market approaches” as distinct cooperative approaches from market mechanisms like ITMOs. Article 6.8 underscores that these non-market approaches “shall aim to promote mitigation and adaptation ambition, enhance public and private sector participation in the implementation of nationally determined contribution, and enable opportunities for coordination across instruments and relevant institutional arrangements.” Article 6.9 then simply announces the definition of a “framework for non-market approaches to sustainable development.”  Both of these provisions are reinforced by relevant COP21 decisions.  Paragraph 39 of Decision 1 requests SBSTA to “undertake a work programme under the framework for non-market approaches to sustainable development,  … with the objective of considering how to enhance linkages and create synergy between, inter alia, mitigation, adaptation, finance, technology transfer and capacity-building, and how to facilitate the implementation and coordination of non-market approaches.” As a result of this work, SBSTA is asked in paragraph 40 to recommend a draft decision on the work programme for consideration and adoption at the first Paris Agreement COP.

Conclusion

During the 2015 negotiations of the draft text of the Paris Agreement – from the voluminous Geneva Negotiating Text in February through the penultimate draft during COP21’s final days –

it wasn’t clear if the final agreement language would include references to markets. According to one negotiator, it was one of the last issues to be agreed on by the Parties, during the last night of COP21, shortly before the text went to the COP President for final approval and subsequent release to Parties for adoption on December 12, 2015.[8] For those who favor the continued use of market mechanisms for mitigating emissions post Kyoto Protocol, the compromises present in Article 6 permit the establishment of a new mechanism that will take the place of CDM.

Work under SBSTA during the remainder of 2016 will be important to operationalizing this mechanism and creating the conditions for all Parties to achieve their mitigation NDCs. Spelling out the relationship between the Kyoto flexibility mechanisms and the new mechanism is also important, for example if the new mechanism succeeds the CDM and JI or simply works in tandem with them.

Given the fast track in ratification anticipated after the April 22, 2016 signing ceremony, this agenda will likely draw heavily on the experience gained while implementing the CDM’s “additionality” and environmental integrity criteria. Developing the modalities and procedures soon will be key for success of a multilateral mechanism.  If it should get bogged down, as the FVA/NMM did during debate under the Durban Mandate, “interested countries may pursue bottom-up linkages elsewhere rather than continue to search for solutions within the UN climate talks.”[9]

[1] Andrei Marcu, “Carbon Market Provisions in the Paris Agreement (Article 6),”CEPS Special Report, No. 128 January 2016, at 1, available at https://www.ceps.eu/publications/carbon-market-provisions-paris-agreement-article-6.

[2] For a good short primer on the history of international market mechanisms and how they’ve functioned, see Anthony Mansell, What’s Ahead for Carbon Markets after COP21?, C2ES, available at http://www.c2es.org/newsroom/articles/whats-ahead-for-carbon-markets-after-cop-21.

[3] IETA INDC Tracker, available at https://docs.google.com/spreadsheets/d/1YgIQiiucWW9vuDUAMeRstzzLxTXi6zFWtFVClqtRTe4/edit#gid=1552863969.

[4] http://unfccc.int/resource/docs/2016/cop22/eng/02.pdf at para. 30.

[5] For example, in the 10 December 2015 version of the draft PA, “cooperative approaches” and “accounting” appear in Article 3, while the “SD mechanism provision” remains separate under Article 3ter.

[6] For more background on the precise language choices in this provision, e.g. “recognition” vs. permission, as well as “ambition,” “sustainable development,” and “environmental integrity,” see Marcu, supra note 1, at 6.

[7] For more background on the creation of this term, see Marcu, supra note 1, at 6-7.

[8] Marcu, supra note 1.

[9] Mansell, supra note 2.  These could include nationally driven bilateral market mechanisms or small multilateral ones. These could also include the G7’s Carbon Market Platform or the system that International Civil Aviation Organization (ICAO) is developing.

Introduction

For more detail on how and when this Paris Agreement section changed during the COP21 negotiations, click here.

For the first time in the history of international climate negotiations, adaptation has its own article in a legal text. Even more striking is that loss and damage, historically treated as a component of adaptation, does too. For many years, negotiations concerning adaptation and loss and damage have been contentious between developed countries, which prioritize mitigation over adaptation and loss and damage, and developing countries uniquely vulnerable to the impacts of climate change. Chronicling the controversial discussions and negotiations leading up to these monumental Paris Agreement articles reveals still-existing tensions between Parties to the Agreement. It also sheds light on negotiable points for future Conferences of the Parties (“COPs”).

Adaptation, mitigation, and loss and damage are three interconnected concepts pertaining to climate change. Defined simply, “adaptation” is the “adjustment of behaviour to limit harm, or exploit beneficial opportunities, arising from actual or expected climate change.”[1] In contrast, “mitigation” seeks to limit climate change, primarily by reducing greenhouse gas emissions.[2]  “Loss and damage” encompasses the costs associated with climate impacts that adaptation and mitigation cannot prevent.[3]

Prior to the Paris Agreement, the governing international climate agreements prioritized mitigation over adaptation and loss and damage. Adaptation was only a minor component of the United Nations Framework Convention on Climate Change (“UNFCCC”), which in Article 2 identified the Convention’s primary objective as “stabilizing greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous interference with the climate system.”[4] Although the UNFCCC’s priority was mitigation, it acknowledged adaptation as a commitment in Article 4.[5] The Kyoto Protocol continued to prioritize mitigation by establishing greenhouse gas emissions-reduction targets for developed countries.[6]

In the five years leading up to COP21, developing countries prioritized achieving parity between adaptation and mitigation. The path to parity began in 2010 at COP16 in Cancun, Mexico when the Parties established the Cancun Adaptation Framework and the Adaptation Committee.[7] Notably, in the Cancun Adaptation Framework the Parties agreed, “adaptation must be addressed with the same priority as mitigation.”[8] The Parties advanced the Adaptation Framework at COP17 in Durban, South Africa in the decision by reaffirming the Adaptation Committee as “the overall advisory body to the Conference of the Parties on adaptation to the adverse effects of climate change.”[9] Building on the creation of the Cancun Framework, Parties solidified the placement of loss and damage at COP19 by creating the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (“WIM”) to serve as a loss and damage mechanism.[10]

Parity culminated at COP20 in two ways: 1) with negotiations over the required elements for Parties to include in their intended nationally determined contributions (“INDCs”), which were to be submitted prior to COP21; and 2) in the focus of the new agreement.[11] Predictably, developed countries maintained that the INDCs should focus solely on mitigation. Developing countries disagreed, and advocated to include adaptation, too.[12] Ultimately, developing countries prevailed, as evidenced by the COP20 decision text, which “[i]nvites all Parties to consider communicating their undertakings in adaptation planning or consider including an adaptation component in their intended nationally determined contributions.”[13] Parties also agreed that the new legal instrument to be developed at COP21 would address adaptation and mitigation “in a balanced manner.”[14]

Negotiations on loss and damage yielded little resolution at COP20. The decision’s introduction “welcome[d] the progress made” toward implementing the WIM, but Parties did not reach a consensus on how or even whether loss and damage should appear in the Paris Agreement.[15] The “Elements For a Draft Negotiating Text” in the draft decision’s Annex listed multiple options for the manners in which loss and damage may or may not be included in the Paris Agreement.[16]

At COP21, the Parties furthered parity by adopting the Paris Agreement, which treats mitigation, adaptation, and loss and damage more equally than ever before. Structurally, the Paris Agreement employs a combined top-down and bottom-up procedural approach, which inherently favors adaptation and loss and damage activities. It also endorses a country-driven process to achieve its goals. Adaptation by its very nature relies on country-driven processes. Because climate change affects individual countries in vastly different ways, appropriate adaptation actions differ among countries and consist of a broad array of specific actions.

Unlike the prior international climate treaties, the Paris Agreement’s process-focused articles on adaptation and loss and damage use differentiation to guide planning and policy implementation. Countries have differing vulnerabilities and abilities to respond to climate change. With differing dispositions toward climate change, it would be impractical to establish a global, quantitative adaptation or loss and damage goal. It would be equally impractical to delineate a uniform set of adaptation or loss and damage commitments. Relying on a bottom-up approach to address the location-specific areas of adaptation and loss and damage is most appropriate. Yet, this approach relies on a collective goal of support for these individual actions, which incorporates the top-down aspect of the combined approach.

Adaptation in the Paris Agreement

The Paris Agreement includes action on adaptation among the three goals that serve the Agreement’s purpose of “strengthen[ing] the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty.”[17] Later in the Agreement, Article 7 operationalizes this goal by specifically addressing the adaptive efforts Parties should make. With fourteen paragraphs, the adaptation article is the third-largest provision in the Paris Agreement—behind only mitigation, at thirty, and transparency, at fifteen.

These paragraphs focus on the need to approach adaptation collectively, even though specific adaptation needs vary from country to country. Where the Agreement is less detailed, COP21 decision paragraphs 41–46 provide greater specificity. But language confined to the decision does not carry the same legal force as the binding Agreement. Language in the decision influences the manner in which Parties can interpret the Agreement and also provides guidance for carrying out the Agreement’s objectives. Yet, because of its non-binding nature, language in the decision will likely require more negotiation at future negotiation sessions.

Global Goal & Challenge

Establishing a global adaptation goal was a serious source of contention among UNFCCC Parties.[18] Developing countries sought parity between mitigation and adaptation in this provision by establishing a nexus between the two concepts.[19] Developed countries opposed the global goal seeking to strengthen adaptation; they proposed no text.[20] Further complicating matters, the location-specific nature of adaptation created difficulties in formulating one unified global goal.  Adaptation needs vary widely from country to country and region to region, so agreeing on one common adaptation plan to address all Parties’ needs was not possible. Ultimately the Parties agreed to a global qualitative goal requiring all Parties to engage in their own, individual adaptation planning and implementation.

Article 7 of the Paris Agreement begins broadly by framing the overarching “global goal on adaptation of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change.”[21]  The goal ultimately lies in promoting “sustainable development and ensuring an adequate adaptation response” in light of the temperature goal listed in Article 2 of the Agreement.[22] The adequacy of a country’s adaptation response will vary according its vulnerabilities to climate change and its respective ability to adapt to those vulnerabilities.

Article 7 “recognize[s] that adaptation is a global challenge faced by all with local, subnational, regional and international dimensions, and that it is a key component of and makes a contribution to the long-term global response to climate change to protect people, livelihoods and ecosystems.”[23] Importantly, the provision recognizes the needs for global cooperation even though adaptation is highly location-specific.

The principal of common but differentiated responsibilities and respective capabilities, although not named explicitly, is relevant to this provision. Common but differentiated responsibilities and respective capabilities is an important international environmental law principal dating back to the 1992 Earth Summit that expresses “the need to evaluate responsibility for the remediation or mitigation of environmental degradation based on both historical contribution to a given environmental problem and present capabilities.”[24] It was a fundamental component of the UNFCCC and the Kyoto Protocol.[25] Developing countries advocated retaining this historical concept in the Paris Agreement, but were opposed by developed countries (historically the largest greenhouse gas emitters). Although common but differentiated responsibilities and respective capabilities is not expressly articulated in Article 7, the Paris Agreement does name it as a guiding principal in both the introduction and Article 2, which identifies the Paris Agreement’s overarching purpose and goals.

International and National Cooperation

Achieving the Paris Agreement’s global goal requires both international and national cooperation. Article 7 “recognize[s] the importance of support for and international cooperation on adaptation efforts.”[26] Yet, it does not impose mandatory commitments on Parties. The article instead states that Parties “should” engage in five enumerated actions pertaining to sharing policy-related information, strengthening institutional arrangements, assisting developing countries with adaptation planning, and generally improving adaptation actions. In addition to requesting all Parties undertake these efforts, Article 7 also “encourage[s]” the United Nations “to support the efforts of Parties to implement the [articulated] actions.”[27] Likewise, this language does not actually require the United Nations organizations to cooperate.

The Paris Agreement requires national cooperation from the Parties via national adaptation activities. Under Article 7.9, parties “shall, as appropriate, engage in adaptation planning processes and the implementation of actions, including the development or enhancement of relevant plans, policies and/or contributions.”[28] Such planning and implementation processes include actions related to adaptation actions, national adaptation plans, nationally determined prioritized actions, sustainability, and resilience building.[29] Allowing parties to establish their own adaptation actions in whatever way they deem appropriate allows differentiation to guide the national adaptation planning and implementation process.

Tracking the Parties’ national adaptation activities may prove difficult, however, due to non-binding reporting measures. Under the Paris Agreement, Parties “should” submit adaptation communications to a public registry.[30] The aspirational “should” does not require, but merely requests that Parties “submit and update periodically an adaptation communication.”[31] Thus, it is unclear whether this attempt at transparency will become widespread among the Parties. Although almost all parties submitted intended nationally determined contributions prior to COP21, they did not report on adaptation in a consistent manner.[32] Most developing countries included robust adaptation sections that detailed their needs and intended actions; however, most developed countries provided no adaptation information. Depending on Parties’ compliance and thoroughness with this request, adaptation communications could become a major topic of discussion at future COP events.

Article 7 designates help to developing countries in reaching their adaptation goals and requirements. Developing country parties are to receive “continuous and enhanced international support” for implementing adaptation plans, adaptation communications, and other measures.[33] Importantly, the Article does not indicate from whom or from where the support will come. But when read with Article 9 on finance, it is clear that developed countries will be the source of support. Pursuant to Article 9.1, “[d]eveloped country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation.”[34]

Planning and reviewing these national adaptation efforts will depend on each Party’s specific adaptation needs and ability to respond. Thus, differentiation is an important component of national activities.

Adaptation Needs and Mitigation Co-benefits

Article 7.4 explains the co-benefits of adaptation and mitigation and stresses the importance of climate change adaptation, and in doing so further solidifies parity between adaptation and mitigation. The article states, “the current need for adaptation is significant and that greater levels of mitigation can reduce the need for additional adaptation efforts.”[35] Article 7 also refers to the financial aspects of adaptation. Specifically, that “greater adaptation needs can involve greater adaptation costs.”[36]

Significantly, Article 7 elevates mitigation and adaptation actions to the purview of all Parties to the Paris Agreement. Although mitigation reduces future climate risks, and adaptation addresses current climate change impacts, it is possible to create synergies between the two and “implement[t] climate policy options in a more cost-effective way.”[37] Article 7 can communicate to developed countries that increasing mitigation efforts can reduce the need and cost for future adaptation actions. To developing countries, the provision can acknowledge that implementing adequate adaptation measures can simultaneously affect mitigation.[38]

An introductory decision paragraph highlights the “benefits of ambitious and early action, including major reductions in the cost of future mitigation and adaptation efforts.”[39] Significantly, paragraph 52 of the decision states that developing countries’ financial support, which historically has been intended primarily for mitigation, should be allocated to “enhance the implementation of their policies, strategies, regulations and action plans and their climate change actions with respect to both mitigation and adaptation.”[40]  Unfortunately this financial instruction does not have the same binding effect as it would in the Agreement. Although developing countries secured language correlating adaptation and mitigation efforts in the Agreement, developed countries managed to incorporate the terms pertaining to finance, which ultimately enables these efforts, into the softer-law decision. Because of the non-binding placement of the language and the historical controversy surrounding allocation of funds, this financial-allocation language may be the subject of future negotiations.

Governance

The Paris Agreement and COP21 decision paragraphs rely heavily on the Adaptation Committee for governance. Article 7.7 of the Paris Agreement calls for parties to take into account the current Cancun Adaptation Framework. COP21 decision paragraphs 41–46 provide more specific information on how to do so. These paragraphs predominantly direct the Adaptation Committee to review adaptation-related processes and make recommendations to the COP at the first meeting of the Parties to the Paris Agreement. The Adaptation Committee is an institutional arrangement under the Cancun Framework that was established at COP16 under the Cancun Agreements.[41] The Adaptation Committee’s purpose is “to promote the implementation of enhanced actions on adaptation in a coherent manner under the Convention.”[42]

The Adaptation Committee’s membership structure allows developing countries to be a driving force in adaptation governance. At COP17, the Parties decided that the Adaptation Committee will have sixteen members: two from each of the United Nations regional groups, one from a small island developing State (“SIDS”), one from a least developed country (“LDC”) Party, two from the Convention’s designated Annex I Parties (developed countries), and two from non-Annex I countries.[43] Thus, with a majority of seats, developing countries, particularly SIDS and LDCs, can wield significant influence in developing adaptation planning processes and policy recommendations for consideration by the COPs. For example, the Paris Agreement requires developing country Parties’ adaptation efforts to be recognized according to modalities “to be adopted” later.[44] COP 21 decision paragraph 41 delegates authority to the Adaptation Committee to develop these modalities.

The decision also delegates authority to the Adaptation Committee and other sub-bodies to work on adaptation finance matters, a priority area for developing countries. United Nations agencies and other financial institutions should communicate “climate-proofing and climate resilience measures” related to development assistance and climate finance programs.[45] The Adaptation Committee, the Least Developed Countries Expert Group, and other relevant institutions should recommend means of mobilizing adaptation support to developing countries and review “the adequacy and effectiveness” of adaptation support at the first meeting of Paris Agreement parties.[46] The decision also requests the Green Climate Fund, which pledged to support mitigation and adaptation equally, to expedite developing country support to assist their formulation and implementation of national adaptation plans.[47]

Yet, because these governance aspects pertaining to the Adaptation Committee appear in the decision, they are subject to change in the future. For this reason, it is likely adaptation governance, particularly of financial matters, will be a significant topic of negotiation at future COPs. 

Conclusion

The Paris Agreement’s treatment of adaptation reflects the Parties’ willingness to allow differentiation to guide national policy planning and implementation and also to grant adaptation greater parity with mitigation. Unlike mitigation, which can reach quantitative greenhouse gas emissions goals, adaptation and loss and damage require location-based and process-focused goals. The Paris Agreement’s procedural method of relying on differentiation to enable a combined top-down and bottom-up approach caters to the unique location-specific nature of adaptation and loss and damage.

[1] European Parliament, The Paris Agreement: A New Framework for Global Climate Action 2 (2016), http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/573910/EPRS_BRI(2016)573910_EN.pdf  (last visited Apr. 10, 2016).

[2] Id.

[3] Id.

[4] United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc No. 102-38, 1771 U.N.T.S. 107 [hereinafter UNFCCC].

[5] Id. at art. 4.1(e).

[6] Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (1998).

[7] Chronology-Adaptation Committee, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/groups_committees/adaptation_committee/items/7518.php (last visited Apr. 10, 2016).

[8] U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Sixteenth Session, held in Cancun from 29 November to 10 December 2010, ¶ 2(b), U.N. Doc. FCCC/CP/2010/7/Add.1 (Mar. 15, 2011).

[9] Id. ¶ 92.

[10] Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/workstreams/loss_and_damage/items/8134.php (last visited Apr. 12, 2015).

[11] Lima Call for Climate Action Puts World on Track to Paris 2015, U.N. Framework Convention on Climate Change (Dec. 14, 2014), http://newsroom.unfccc.int/lima/lima-call-for-climate-action-puts-world-on-track-to-paris-2015/; At COP17, the Parties established the Ad Hoc Working Group on a Durban Platform for Enhanced Action and mandated that it develop “a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties” by 2015. U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Seventeenth Session, Held in Durban from 28 November to 11 December 2011, 2, U.N. Doc. FCC/CP/2011/9/Add.1, ¶ 2, Decision 1/CP.17 (Mar. 15, 2012).

[12] Outcomes of the U.N. Climate Change Conference in Lima, Ctr. for Climate & Energy Sols., http://www.c2es.org/international/negotiations/cop-20-lima/summary (last visited Apr. 12, 2016). They also advocated including finance, technology, and capacity building as fundamental INDC elements. Id.

[13] U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Twentieth Session, Held in Lima from 1 to 14 December 2014, ¶ 12, U.N. Doc. FCCC/CP/2014/10/Add.1 (Feb. 2, 2015).

[14] Id. ¶ 2.

[15] Id. at 2.

[16] Id. at 6.

[17] Paris Agreement, art. 2.1, Dec. 15, 2015, http://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf. The Parties adopted the Paris Agreement on December 12, 2015, but it has not yet been ratified or entered into force. The signing period will open April 22, 2016 and it will enter into force once 55 countries accounting for at least 55% of global emissions deposit their ratification instruments. Historic Paris Agreement on Climate Change: 195 Nations Set Path to Keep Temperature Rise Well Below 2 Degrees Celsius, U.N. Framework Convention on Climate Change, http://newsroom.unfccc.int/unfccc-newsroom/finale-cop21/ (last visited Apr. 15, 2016).

[18] Chukwumerije Okereke et al., Options for Adaptation and Loss and Damage in a 2015 Climate Agreement 6 (unpublished) (Nov. 2014) (on file with the World Res. Inst.), http://act2015.org/ACT_2015_Options_for_Adaptation_and_Loss_&_Damage.pdf (last visited Apr. 12, 2016).

[19] Id.

[20] Id.

[21] Paris Agreement, supra note 17, at art. 7.1.

[22] Id.

[23] Id. at art. 7.2.

[24] Vito De Lucia, The Encyclopedia of the Earth, Common But Differentiated Responsibility (July 27, 2007, 11:01 AM), http://www.eoearth.org/view/article/151320/.

[25] Id.

[26] Paris Agreement, supra note 17, at art. 7.6.

[27] Id. at 7.8.

[28] Id. at art. 7.9.

[29] Id.

[30] Id. at art. 7.12.

[31] Id. at art. 7.11.

[32] Kathleen Mogelgaard & Heather McGray, With New Climate Plans, Adaptation Is No Longer an Overlooked Issue, World Res. Inst. (Nov. 24, 2015), http://www.wri.org/blog/2015/11/new-climate-plans-adaptation-no-longer-overlooked-issue.

[33] Paris Agreement, supra note 17, at art. 7.13.

[34] Id. at 9.1.

[35] Id. at art. 7.4.

[36] Id.

[37] Synergies Between Adaptation and Mitigation, weAdapt, https://www.weadapt.org/knowledge-base/synergies-between-adaptation-and-mitigation (last visited Apr. 12, 2016).

[38] The Mitigation of Climate Change in Agriculture (MICA) Global Program, weAdapt (Dec. 14, 2012, 2:29 PM), https://www.weadapt.org/knowledge-base/synergies-between-adaptation-and-mitigation/mitigation-of-climate-change-in-agriculture-micca. Studies confirm that co-benefits of adaptation and mitigation exist “in the areas of low carbon development, climate-smart agriculture, water-energy-land nexus, bioenergy, [and] blue carbon.” Id.

[39] U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Twenty-First Session, Held in Paris from 30 November to 13 December 2015 2, U.N. Doc. FCCC/CP/2015/10/Add.1 (Jan. 29, 2016) [hereinafter COP21 decision].

[40] Id. at 8.

[41] Chronology - Adaptation Committee, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/groups_committees/adaptation_committee/items/7518.php (last visited Apr. 12, 2016).

[42] Id.

[43] Members of the Adaptation Committee, U.N. Framework Convention on Climate Change http://unfccc.int/adaptation/groups_committees/adaptation_committee/items/6944.php (last visited Apr. 12, 2016).

[44] Paris Agreement, supra note 17, at art 7.3.

[45] COP 21 decision, supra note 39, at ¶ 43.

[46] Id. ¶ 45.

[47] Id. ¶ 46.

[48] Kathleen Mogelgaard & Heather McGray, When Adaptation Is Not Enough: Paris Agreement Recognizes “Loss and Damage”, World Res. Inst. (Dec. 24, 2015), http://www.wri.org/blog/2015/12/when-adaptation-not-enough-paris-agreement-recognizes-“loss-and-damage”.

[49] Jorge Vinuales, The Paris Climate Agreement: An Initial Examination (Part II of III), Eur. Journal of Int’l Law Blog (Feb. 8, 2016), http://www.ejiltalk.org/the-paris-climate-agreement-an-initial-examination-part-ii-of-iii/.

[50] Mogelgaard, supra note 48.

[51] Id.

[52] Article 8 receives a comparable amount of treatment as Article 10 on technology development and transfer and Art. 11 on capacity building.

[53] Paris Agreement, supra note 17, at art. 8.1.

[54] Id. at art. 8.3.

[55] Id. at 8.4.

[56] Id. at art. 8.4.

[57] Ben Adler, Why the Words “Loss and Damage” Are Causing Such a Fuss at the Paris Climate Talks, Vox Energy & Env’t, http://www.vox.com/2015/12/9/9871800/paris-cop21-climate-loss-damage (last updated on Dec. 9, 2015, 9:00 AM).

[58] Id.

[59] COP21 decision, supra note 39, at ¶ 51.

[60] Paris Agreement, supra note 17, at art. 8.2.

[61] Chronology – Loss and Damage, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/workstreams/loss_and_damage/items/7545.php (last visited Apr. 12, 2016).

[62] Id.

[63] Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, U.N. Framework Convention on Climate Change http://unfccc.int/adaptation/workstreams/loss_and_damage/items/8134.php (last visited Apr. 12, 2016).

[64] Id.

[65] Paris Agreement, supra note 17, at art. 8.2.

[66] COP21 decision, supra note 39, at ¶¶ 48–50.

[67] Id.

[68] Saleemul Huq & Roger-Mark De Souza, Not Fully Lost and Damaged: How Loss and Damage Fared in the Paris Agreement, Wilson Ct.r (Dec. 22, 2015), https://www.wilsoncenter.org/article/not-fully-lost-and-damaged-how-loss-and-damage-fared-the-paris-agreement.

Introduction

For more detail on how and when this Paris Agreement section changed during the COP21 negotiations, click here.

The Paris Agreement is the first international agreement to explicitly address loss and damage, which the UNFCCC Parties have historically treated as a component of adaptation.[1] Adaptation and loss and damage function in tandem but are two distinct concepts.[2] The World Resources Institute explains that loss and damage arises from the “reality that there are some climate change impacts that cannot be adapted to—impacts that are so severe that they leave in their wake permanent or significantly damaging effects.”[3] Climate-related impacts associated with loss and damage include slow-onset events like ocean acidification, desertification, and sea level rise and also sudden extreme weather events like intense cyclones and flooding. These devastating impacts cause many types of losses, including those of lives, infrastructure, assets, ecosystems, and communities.[4]

Loss and damage in the Paris Agreement was one of the most controversial topics at COP21. Developed and developing countries debated whether to place loss and damage in the decision or the Agreement and whether to organize it as a component of adaptation or as a distinct, free-standing article. Faced disproportionately with losses of this kind, LDC parties and SIDS prioritized securing a place for loss and damage in the Paris Agreement, where its provisions would carry the full force of law. Concerned with being held liable for the costs associated with loss and damage in financially strained developing countries, developed countries strove to preclude loss and damage from appearing in the Agreement. They preferred loss and damage to appear exclusively in the decision, where its text would be nonbinding and more of a political statement.

Distinct Article

Since COP14 in 2008, the Parties have disagreed on how to collectively address loss and damage. In drafting the Paris Agreement, the Parties were unresolved through to the penultimate draft as to whether loss and damage would receive its own article in the agreement, occupy a subordinate position within the Adaptation article, or be relegated to the decision. In the end, the Parties agreed to designate a distinct article of the Agreement to loss and damage.

Not only does loss and damage have its own article in the Paris Agreement, it has one of average length. With five paragraphs, article 8 on loss and damage is an average-sized article in the Paris Agreement.[5] These five paragraphs, along with decision paragraphs 47–51, focus mainly on acknowledging the importance of “minimizing and addressing loss and damage associated with the adverse effects of climate change”[6] and establishing the preexisting Warsaw International Mechanism as the official international governance mechanism under the Paris Agreement. Article 8 states that Parties “should” act cooperatively to address and minimize loss and damage associated with climate change.[7] It provides examples of “areas of cooperation and facilitation to enhance understanding, action, and support” with respect to loss and damage.[8] These examples include “early warning systems; emergency preparedness; slow onset events” and also “comprehensive risk assessment and management; risk insurance facilities . . . and resilience of communities, livelihoods and ecosystems.”[9]

A major area of contention between developed and developing country Parties was whether and how to address liability and compensation for loss and damage.[10] Liability and compensation language appeared first in the Agreement, but developed countries succeeded at pressuring the Parties to move this language to the decision.[11] With decision paragraph 51, Parties agreed that Article 8 “does not involve or prove a basis for any liability or compensation.”[12] The United States predicated its cooperation with other key aspects of the overall Agreement on the inclusion of this provision. This provision was a victory for developed countries concerned with being held liable for their heavy past and current greenhouse gas emissions. Developing countries were relieved to prevent its inclusion in the Agreement. Technically, though highly unlikely, a subsequent COP decision could modify this paragraph.

Article 8 differs from the adaptation and mitigation articles in that neither it nor its related decisions even hint at financing. How the Parties will pay for damages resulting from extreme weather or slow onset events remains unclear. The manner in which Parties will finance loss and damage planning measures also remains unclear. While the creation of a distinct article on loss and damage in the Paris Agreement concludes the debate on its proper placement, gaps in its treatment will spur future debate on adaptation-financing measures.

Governance Mechanism

The Parties selected the existing WIM to serve the agreement as the governance mechanism for loss and damage.[13] Based on the COP18 decision, at COP 19 the COP established the WIM and its Executive Committee as a means for continuing discussion and understanding of loss and damage.[14] But, it did so under the adaptation pillar of the UNFCCC agenda.[15] The WIM has three major functions: 1) promoting understanding of risk management; 2) strengthening communications among stakeholders; and 3) enhancing action and support.[16] An initial two-year work plan for the Executive Committee of the WIM was approved at COP20, but the WIM’s future beyond that two-year mark remained uncertain.[17] At COP21, the Parties agreed to anchor the two-year-old mechanism as the permanent governance structure for loss and damage. The agreement leaves open the possibility for the WIM to evolve over time to be “enhanced or strengthened as determined by” the Parties.[18] Thus, this young mechanism will likely be a topic of future negotiations.

The COP21 decision paragraphs cement the WIM’s governance role by requesting it carry out specific governance actions.[19] The Executive Committee should: establish comprehensive risk management strategies; create a task force for displacement issues related to the adverse impacts of climate change; and prepare annual reports.[20] Including language related to displacement was a pillar of developing countries’ loss and damage negotiation demands.[21] Ideally for developing countries, however, the issue of displacement and migration would have been incorporated into the WIM’s major action areas listed in Article 8.4 of the agreement.

Through dedicated efforts and compromise, both developed and developing countries succeeded at certain aspects of the loss and damage negotiations. Developing countries achieved a freestanding loss and damage article in the Paris Agreement that instilled the WIM as a permanent governing institution to promote best methods of approaching loss and damage. Developed countries, spearheaded by the United States, managed to achieve zero-liability language in the decision.

The Parties will evaluate the WIM’s efforts at COP22 in Morocco. There, the Parties will likely engage in negotiations and discussions concerning loss and damage financing, the WIM’s governance, and displaced populations.

Conclusion

The Paris Agreement’s treatment of adaptation and loss and damage reflect the Parties’ willingness to allow differentiation to guide national policy planning and implementation and also to grant adaptation greater parity with mitigation. Unlike mitigation, which can reach quantitative greenhouse gas emissions goals, adaptation and loss and damage require location-based and process-focused goals. The Paris Agreement’s procedural method of relying on differentiation to enable a combined top-down and bottom-up approach caters to the unique location-specific nature of adaptation and loss and damage.

[1] Kathleen Mogelgaard & Heather McGray, When Adaptation Is Not Enough: Paris Agreement Recognizes “Loss and Damage”, World Res. Inst. (Dec. 24, 2015), http://www.wri.org/blog/2015/12/when-adaptation-not-enough-paris-agreement-recognizes-“loss-and-damage”.

[2] Jorge Vinuales, The Paris Climate Agreement: An Initial Examination (Part II of III), Eur. Journal of Int’l Law Blog (Feb. 8, 2016), http://www.ejiltalk.org/the-paris-climate-agreement-an-initial-examination-part-ii-of-iii/.

[3] Mogelgaard, supra note 1.

[4] Id.

[5] Article 8 receives a comparable amount of treatment as Article 10 on technology development and transfer and Art. 11 on capacity building.

[6] Paris Agreement, art. 8.1, Dec. 15, 2015, http://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf. The Parties adopted the Paris Agreement on December 12, 2015, but it has not yet been ratified or entered into force. The signing period will open April 22, 2016 and it will enter into force once 55 countries accounting for at least 55% of global emissions deposit their ratification instruments. Historic Paris Agreement on Climate Change: 195 Nations Set Path to Keep Temperature Rise Well Below 2 Degrees Celsius, U.N. Framework Convention on Climate Change, http://newsroom.unfccc.int/unfccc-newsroom/finale-cop21/ (last visited Apr. 15, 2016).

[7] Id. at art. 8.3.

[8] Id. at 8.4.

[9] Id. at art. 8.4.

[10] Ben Adler, Why the Words “Loss and Damage” Are Causing Such a Fuss at the Paris Climate Talks, Vox Energy & Env’t, http://www.vox.com/2015/12/9/9871800/paris-cop21-climate-loss-damage (last updated on Dec. 9, 2015, 9:00 AM).

[11] Id.

[12] U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Twenty-First Session, Held in Paris from 30 November to 13 December 2015 2, U.N. Doc. FCCC/CP/2015/10/Add.1 ¶ 51.(Jan. 29, 2016) [hereinafter COP21 decision].

[13] Paris Agreement, supra note 6, at art. 8.2.

[14] Chronology – Loss and Damage, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/workstreams/loss_and_damage/items/7545.php (last visited Apr. 12, 2016).

[15] Id.

[16] Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, U.N. Framework Convention on Climate Change http://unfccc.int/adaptation/workstreams/loss_and_damage/items/8134.php (last visited Apr. 12, 2016).

[17] Id.

[18] Paris Agreement, supra note 6, at art. 8.2.

[19] COP21 decision, supra note 12, at ¶¶ 48–50.

[20] Id.

[21] Saleemul Huq & Roger-Mark De Souza, Not Fully Lost and Damaged: How Loss and Damage Fared in the Paris Agreement, Wilson Ct.r (Dec. 22, 2015), https://www.wilsoncenter.org/article/not-fully-lost-and-damaged-how-loss-and-damage-fared-the-paris-agreement.

Introduction

For more detail on how and when this Paris Agreement section changed during the COP21 negotiations, click here.

Finance is likely the most widely discussed and controversial component of the Paris Agreement. Because the parties to the agreement were so divided on how to provide access to adequate financial resources for addressing climate change, it may also be the least progressive component of the Paris Agreement. Many parties entered the negotiation with aggressive financing goals paired with concrete metrics and deadlines. These goals built on the financial needs and availability of resources identified in the Intended Nationally Determined Contributions (“INDCs”) submitted leading up to COP21. But ultimately such goals proved to be too contentious, and the Parties made little progress from the developed country-lead approach adopted in the Kyoto Protocol 18 years ago.

The Paris Agreement finance negotiations took place within the context of the many and varied funding entities established under the United Nations Framework Convention on Climate Change’s (“UNFCCC”’s) Financial Mechanism. For instance, the Global Environmental Facility (“GEF”) is the original mechanism serving the UNFCCC. It was created after the Rio Earth Summit to serve the three major multilateral environmental agreements negotiated there, and it continues to fund incremental costs associated with incorporating environmental benefits into otherwise beneficial projects. Similarly, the Green Climate Fund (“GCF”) was created more recently to supplement the Global Environmental Facility and to act as a stand-alone entity dedicated to the climate change agreements. Other COP decisions created the Standing Committee on Finance, tasked with coordinating climate finance, mobilizing financial resources, and providing technical support to the COPs. Special funds also serve the UNFCCC and its subsidiary agreements by addressing specific financing needs. The Special Climate Change Fund operates within the Global Environmental Facility to finance projects related to specifically delineated sectors. The Least Developed Countries Fund also operates under the Global Environmental Facility to support and provide guidance on the implementation of national adaptation programs of action (“NAPAs”). Finally, the Adaptation Fund was established under the Kyoto Protocol to finance concrete adaptation projects in particularly vulnerable developing countries.

To date, the Financial Mechanism and its affiliated funds and entities, have had some success providing financing for projects to combat climate change. The GEF began as a USD 1B pilot program and has since been replenished several times. It now has the capacity to make close to USD 3B available to finance both mitigation and adaptation measures, and it aims to leverage approximately USD 30B from other sources.[1] Additionally, while GCF’s initial capitalization period ends in 2018, it accepts new pledges on an ongoing basis. As of February 2016, 42 governments have pledged USD 10.2B to the GCF.[2] These hollow pledges must be converted into binding contribution agreements within one year.[3] Furthermore, at COP15 in Copenhagen, developed country Parties committed to mobilizing USD 100B per year by 2020.[4] The OECD estimates that climate financing reached USD 62B in 2014, approximately halfway through the commitment period.[5] Though, on the surface, developed country commitments appear to be approaching the 2020 target, there are issues related to availability, accountability, and transparency of funds. Also, more than three quarters of the financing mobilized from 2013-2014 was dedicated to mitigation efforts, with only one sixth of the financing applied to adaptation efforts (with a small percentage targeted to both strategies).[6] In fact, an analysis of the INDCs submitted in anticipation of COP21 indicates that USD 100B from developed countries will be insufficient to limit global temperature rise to 1.5-2˚ C. In fact, the report found that the INDCs submitted by October 23, 2015 alone required more than USD 3 trillion between 2015 and 2030.[7] Many Parties and other stakeholders hoped to achieve more with the Paris Agreement.

Ultimately, the Paris Agreement does achieve some important advances. It shifts the focus of climate finance to more equitably address the needs of mitigation and adaptation efforts. It also emphasizes the need for public and grant-based financing to be prioritized for those countries most vulnerable to the effects of climate change. And it calls for increased transparency, upholding strict reporting obligations for developed countries. Although the Parties punted many of the more controversial provisions to future COPs, they grounded the finance provision in the UNFCCC, reaffirmed the Financial Mechanism and its operating entities, and created a foundation upon which more progressive language may eventually be overlaid. This paper analyzes the treatment of finance under the Paris Agreement and the accompanying COP21 decision and examines how the Paris Agreement’s finance provisions advance the goals of climate finance set by the UNFCCC and the COP.

Finance in the Paris Agreement

Developed countries have contributed disproportionately to climate change and, at present, it is relatively easy for them to recover from the immediate effects of the phenomenon. Simultaneously, developing countries are presently experiencing physical and economic loss due to climate change, and are less able to adequately combat that loss. In acknowledging these differences, both the United Nations Framework Convention on Climate Change (“UNFCCC”) and the Kyoto Protocol obligate developed countries to provide financial and other resources to developed countries. Article 11 of the UNFCCC provides a foundation for this transfer of resources, creating a Financial Mechanism to facilitate the flow of funding to developing countries.[8] The UNFCCC language required the Financial Mechanism to have an “equitable and balanced representation of all parties within a transparent system of governance.”[9] The Financial Mechanism is entrusted with ensuring the validity of funded projects, reconsidering funding decisions, providing regular reports on funding operations, and determining a predictable flow of funding.[10] In addition to the Financial Mechanism, Article 11 of the UNFCCC explicitly provides for Parties to take advantage of financial resources available through other “bilateral, regional and other multilateral channels.”[11]

The Paris Agreement builds on the foundation established under the UNFCCC, explicitly recognizing the need to make “finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.”[12] Article 9 addresses this goal by creating certain financial obligations and protocols, focusing predominantly on identifying the parties responsible for providing financing, and on prioritizing the provision of financing. It also maintains the Financial Mechanism through which developed countries must continue to provide support to developing countries. Yet, with nine subsections in the article, finance is hardly longer than Article 16, which set out the procedural requirements for the annual COP meetings, and does not accurately reflect the complexity of the topic. While the Agreement lacks detail and ambition with respect to financing, COP21 decision paragraphs 53–65 provide greater specificity. Unfortunately, these paragraphs do not have legal force comparable to that of the Agreement.

Finance was one of the areas in which the Parties, particularly developing countries, compromised the most. For example, while the non-binding language of the decision text calls upon the Parties to set a “new, collective quantified goal from a floor of USD 100 billion per year,” by 2025[13], the agreement itself only notes that, “mobilization of climate finance should represent a progression beyond previous efforts.”[14] The placement of many key provisions leaves generic and ambiguous language in the heart of the agreement, and transitions the specific objectives to the unenforceable decision text. Some of the ties between finance and other articles were also lost over the course of the negotiation, leaving substantive new mandates without sufficiently well defined means of implementation. It will be the responsibility of future COPs to reform those ties and integrate greater stability and accountability for climate finance into the Paris Agreement. It will be up to Parties in 2016, 2018, and future years to operationalize these concerns.

Differentiation of Finance Responsibilities

The first three paragraphs of Article 9 convey the Parties’ various financial obligations in light of common but differentiated responsibilities and respective capacities (CBDR) under the UNFCCC. Though this principle is not referenced explicitly in this Article, the first paragraph obligates developed country Parties to provide financial resources to developing country Parties for both mitigation and adaptation.[15] The second paragraph then encourages other Parties to provide similar support voluntarily.[16] Finally, the third paragraph encourages developed country Parties to take the lead in mobilizing finance from a variety of both public and private sources.[17] Notably, the Parties opted to include strong, binding language only in the first paragraph (“[d]eveloped country parties ‘shall’ provide financial resources), whereas the second and third paragraph use weaker language like “are encouraged to,” and “should.”

Significantly, the Paris Agreement shifted away from the Kyoto Protocol’s strict definition of Annex I and II Parties and its distinct obligations to those Parties and to Non-Annex I and II countries. Although there is substantial overlap between the strict Kyoto framework and the new “developed” / “developing” dichotomy, the new agreement allows countries to self-identify as one or the other. In doing so, the Paris Agreement marginally expands the responsibility for providing financing. It creates a strict mandate for developed countries to lead the way in contributing financial resources, but it also invites other Parties to offer resources voluntarily.

The final language reflects a compromise between several earlier options for this section. Earlier versions placed a larger emphasis on the shared responsibility for financing climate action and called on all parties to make commitments based on their evolving responsibilities and capabilities. Earlier versions also included specific recommendations for South-South collaboration. While developed countries were likely disappointed to, once-again, be exclusively assigned the legal obligation to provide financing, the Paris Agreement language reflects previous obligations under the Kyoto Protocol and the broader doctrines of the polluter-pays-principle and of climate justice.

Scope and Scale of Climate Financing

While several earlier versions of the Paris Agreement called for specific monetary goals, the final Paris Agreement does not. The only legally binding references to the scale of the financial obligation are in the first and third paragraphs of Article 9. The first paragraph obligates developed country Parties to continue fulfilling their obligations under the UNFCCC.[18] The third paragraph encourages mobilization of climate finance “beyond previous efforts.”[19] The explicit target of achieving USD 100 billion per year was moved to the decision text.^[20] But, the final decision language continues the Parties’ “existing collective mobilization goal through 2025,” even though the original deadline was 2020. [21]  The decision text also states that before 2025 the CMA will set a new quantified goal based on a floor of USD 100 billion.[22]

Though hope remains for a heightened monetary target in the future, the language surrounding the scope and scale of climate finance may be the most significant failure of the Paris Agreement. This is particularly so in light of the ambitious language that was included in earlier versions of the text. The penultimate version of the text stated, “The provision and mobilization of climate finance to enhance mitigation and adaptation action in developing country Parties shall represent a progression beyond previous efforts from a floor of USD $100 billion per year.” It also obligated Parties to expand their efforts in a predictable and transparent manner. Earlier versions of the text also included options for strong language related to: clear burden-sharing formulae; support for improving enabling environments; integration of climate considerations into other international assistance; and access to financing from public, private, bilateral, multilateral, domestic, and international sources.

The loss of an explicit financing goal was likely a political concession that developed countries required before they would support the final agreement. As time was running out on the COP21 negotiations, diplomatic leaders—including the French President, François Hollande, the COP21 president, Laurent Fabius, and the Executive Secretary of the UNFCCC, Christina Figueres—utilized all of their political capital to get a final agreement drafted, sometimes at the expense of the most progressive provisions.[23] The final Paris Agreement language leaves developing countries with substantial uncertainty related to their ability to meet the goals and obligations outlined in Articles 4 through 8 of the agreement, and to meet escalating climate change challenges generally.

Communication Regarding Financial Needs and Distributions

Despite the lack of clear financing targets, Article 9 of the Paris Agreement aims to increase predictability and transparency by including reporting requirements related to financing. Historically, all Parties have been required to periodically submit national reports to the UNFCCC secretariat, which outline the Parties’ progress and needs under the UNFCCC. The Paris Agreement codifies that requirement, stating that developed country Parties must biennially communicate “quantitative and qualitative” information related to projected levels of financial resources they will provide to developing country Parties.[24] Article 9 also obligates developed country Parties to biennially provide transparent, consistent information about support that has already been provided to developing country Parties.[25] Any other Parties that provide financial support are encouraged to participate in these communications on a voluntary basis.[26] All of the relevant information is then to be incorporated into the global stocktake, as described in Article 13 of the Paris Agreement.[27] Notably, the provision requiring “transparent and consistent information on support for developing country parties,” specifically relates to financing “provided and mobilized through public interventions.”[28] Conversely, the other reporting requirement applies to all relevant financing information, with a specific request for “projected levels of public financial resources,” if available.[29] This exemplifies developing countries’ preference for public sources of financing, which are often grant-based, with no repayment requirements or interest.

These communication provisions may represent a compromise between developed and developing countries, with the goal of streamlining the mobilization of financing and supporting the Financial Mechanism, without creating specific monetary targets.[30] This language was very uncertain throughout the development of the Paris Agreement, but the final version did not include any major surprises. These subsections are predominantly criticized for providing little specificity related to the codified reporting requirements. The Parties addressed this by incorporating language in the decision text requiring Parties at COP22 in 2016 to identify the information to be provided.[31] Parties also request the Subsidiary Body for Science and Technological Advice to “develop modalities for the accounting of financial resources provided and mobilized through public interventions” under Article 9.[32] The Parties aim to consider these recommendations at COP24 in 2018 and to adopt the recommendations at the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement.[33] 

Balancing Mitigation and Adaptation

The Paris Agreement states that the provision of financial resources “should aim to achieve a balance between adaptation and mitigation.”[34] This supplements the direct language from the first paragraph, which obligates developed country Parties to provide financial resources to assist developing country Parties “with respect to both mitigation and adaptation.”[35] In particular, Article 9.4 calls for deference to country-driven strategies and consideration toward using public and grant-based resources for adaptation in particularly vulnerable countries.[36] This mirrors the enhanced goals and obligations related to adaptation in the rest of the Paris Agreement. The balance represents a major shift from the Kyoto Protocol’s focus on mitigation. The language of this subsection did not change drastically across the various versions of the text. But it did ultimately prioritize adaptation financing for least developed countries and small island developing states (although not for Africa). Although Article 9 does not obligate Parties to provide equal support to both adaptation and mitigation (it merely suggests that they do so through the use of “should” rather than “shall”), the language still represents progress. Specifically, this language will benefit particularly vulnerable countries, which have little capacity for mitigation due to very low emissions, but which require financial resources to adapt to the immediate effects of climate change.

Where the Paris Agreement fell short with respect to adaptation financing is on Loss and Damage (“L&D”). The Agreement was very progressive in providing L&D with it’s own article, which finally directly addresses the loss and damage associated with adverse effects of climate change. Yet, while previous versions of the agreement explicitly called for adequate financing for a mechanism to support L&D, no reference to funding for L&D exists in the final agreement or decision. This essentially creates a façade of support for the most vulnerable countries, without offering the financial resources to guarantee that support.

Governing Climate Finance

As mentioned above, the Paris Agreement affirms the Financial Mechanism of the UNFCCC, and its operating entities, as the ongoing financial mechanism.[37] The Agreement tasks all of the entities are tasked with ensuring, “efficient access to financial resources through simplified approval procedures and enhanced readiness support for developing country Parties, in particular for the least developed countries and small island developing States, in the context of their national climate strategies and plans.” [38] The decision text specifically identifies the GEF, the GCF, the SCCF, and the LDCF as entities entrusted with the operation of the Financial Mechanism.[39]

Nevertheless, the Adaptation Fund, a crucial tool for carrying out the mandates under Article 7 of the Paris Agreement, is not guaranteed to serve the Paris Agreement.[40] Because it was created under the Kyoto Protocol, which the Paris Agreement will replace, future decisions of the COP and CMP must determine the fate of the Adaptation Fund. Hopefully future meetings of the Parties will either renew the Adaptation Fund as applied to the Paris Agreement upon the phase-out of the Kyoto Protocol, or create a new fund with the mandate to finance concrete adaptation projects in particularly vulnerable developing countries.

Interaction with Other Sections

No version of the finance article ever made references to contributions to specific, new funds (outside of the Financial Mechanism), but earlier drafts of other articles contained cross-references to financing. For example, previous versions of the agreement explicitly obligated adequate financing for a mechanism to support loss and damage, as discussed above.[41] Despite the lack of binding or instructional language, COP sub-bodies are already searching for ways to adequately direct climate finance toward loss and damage.

Additionally, though the Paris Agreement did not establish a legally binding mechanism for REDD+, the decision text “recognizes the importance of adequate and predictable” financing for reducing emissions from deforestation and forest degradation.[42] This paragraph encourages support from all funding sources to achieve sustainable management of forests and enhancement of forest carbon stocks, including results-based payments.[43] The language used in this part of the decision tracks the language supporting forests and carbon sinks in Article 5 of the Agreement.[44]

Finally, there is substantial overlap between reporting requirements under Article 9 and other requirements for transparency laid out in Article 13.[45] Both of these sets of requirements relate also to the information that will be included in the global stocktake of the implementation of the Paris Agreement, which will take place every five years beginning in 2023.[46]

Given that Parties will require adequate financing to meet their obligations under nearly every other article of the Paris Agreement, it is interesting that there are no additional cross-references or specified obligations under Article 9. This may be an area in which parties can make improvements through decisions at future meetings.

Conclusion

The Paris Agreement’s treatment of finance reflects the Parties’ reticence to upset the status quo with respect to the amount and sources of climate finance. This leaves the developing country Parties, particularly the least developed, with limited assurance of the necessary resources to support compliance with an otherwise progressive new agreement. Most significantly, it fails to resolve uncertainty surrounding developing countries’ ability to address their adaptation needs within the context of sustainable development. Yet, these trade-offs were made in support of creating and adopting a final agreement that would seek to keep the planet on track to limit global average temperature rise to 1.5–2˚ C.[47] In that way, it was very successful.

Parties should spend the available time prior to implementation of the Paris Agreement improving upon the foundation created in Article 9. Party leaders must embody the notion that climate change is the “common concern of humankind”[48] and find ways to increase the magnitude, efficiency, and predictability of transmission of financial resources. Only participation by all Parties will lead to adequate and effective solutions related to financing.

 

[1] See https://www.thegef.org/gef/climate_change

[2] See http://www.greenclimate.fund/contributions/pledge-tracker/#capitalization

[3] Id.

[4] OECD, Climate Finance in 2013-14 and the USD 100 billion goal (2015).

[5] See http://www.oecd.org/environment/cc/OECD-CPI-Climate-Finance-Report.htm

[6] See http://www.oecd.org/environment/cc/OECD-CPI-Climate-Finance-Report.htm

[7] ERPS, The Paris Agreement: A New Framework for Global Climate Action (2016).

[8] UNFCCC, Article. 11 (1992).

[9] UNFCCC, Article 11, Para. 2 (1992).

[10] UNFCCC, Article 11, Para. 3 (1992).

[11] UNFCCC, Article 11, Para. 5 (1992).

[12] Paris Agreement Article 2.1.

[13] Decision 1/CP.21 paragraph 54.

[14] Paris Agreement Article 9.3.

[15] Paris Agreement Article 9.1.

[16] Paris Agreement Article 9.2.

[17] Art. 9.3.

[18] Art. 9.1.

[19] Art. 9.3.

[20] Dec. para. 54.

[21] Id.

[22] Id.

[23] FT.com, COP 21: Laurent Fabius Lauded for Successful Conclusion (Dec. 13, 2015).

[24] Paris Agreement Article 9.5.

[25] Paris Agreement Article 9.7.

[26] Arts. 9.5 & 9.7.

[27] Paris Agreement Article 9.6.

[28] Art. 9.7.

[29] Art. 9.5.

[30] WRI, COP21 Q&A: What Role Does Climate Finance Play in the Paris Outcome? (Dec. 9, 2015).

[31] Decision 1/CP.21 paragraph 56.

[32] Decision 1/CP.21 paragraph 58.

[33] Id.

[34] Paris Agreement Article 9.4.

[35] Art. 9.1.

[36] Art. 9.4.

[37] Paris Agreement Article 9.8.

[38] Paris Agreement Article 9.9.

[39] Decision 1/CP.21 paragraphs 59.

[40] Decision 1/CP.21 paragraphs 60.

[41] Paris Agreement Article 8 and Decision 1/CP.21 paragraphs 48–52.

[42] Decision 1/CP.21 paragraph 55.

[43] Id.

[44] Paris Agreement Article 5.2.

[45] Paris Agreement Articles 13.9, 13.10, & 13.11.

[46] Paris Agreement Articles 9.6, 14.1, & 14.2.

[47] Art. 2.1.

[48] UNFCCC Preamble & Paris Agreement Preamble.

For more detail on how and when this Paris Agreement section changed during the COP21 negotiations, click here.

Introduction

Technology is critical for adapting to and mitigating global climate change. Because many developing countries lack adequate funds for research or implementation of climate technology, technology development and transfer is a key aspect of climate negotiations and of achieving the Paris Agreement’s goal of limiting global temperature rise to well below 2C—and ideally 1.5C.

Technology development and transfer encompasses the exchange of knowledge, experience, and equipment needed for adaptation and mitigation—typically from developed countries to developing countries.[1] Climate technologies such as crop-cultivation practices, early warning systems, and sea walls help countries to adapt to climate change. To help mitigate climate change, climate technologies such as wind energy, solar power, and hydropower reduce greenhouse gas emissions. [2]

Technology development and transfer was highly controversial at COP21. Predictably, developed and developing countries’ negotiating points clashed over who or what would be the source(s) of support for implementing Article 10 of the Paris Agreement: developed countries did not want to be required to provide the financial and technical support that developing countries expected of them.

Background

The Parties have addressed technology development and transfer since adopting the UNFCCC in 1992. Article 4.5 of the Convention explicitly states that developed country Parties “shall take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and know-how to other parties, particularly developing country Parties to enable them to implement the provisions of the Convention.” Like the Convention, the Kyoto Protocol in Art. 2.2(a)(iv) requires developed country Parties to work to support “environmentally sound technologies” like renewable energy and carbon dioxide sequestration technologies.

In 2010, the Cancun Agreements at COP16 produced the Technology Mechanism, the first international body dedicated to supporting individual country efforts “to accelerate and enhance action of climate change.”[3] Two complementary bodies, the Technology Executive Committee (TEC) and the Climate Technology Centre and Network (CTCN), comprise the Technology Mechanism.[4]

The TEC and the CTCN function to support developing countries Parties through development and implementation of climate technology. The TEC, consisting of twenty technology experts from developed and developing countries, supports policy aspects of climate technology.[5]  The CTCN has the support of the United Nations Environment Programme, the United Nations Industrial Development Organization, and eleven partner institutions specializing in climate technologies. The CTCN “facilitates a network of national, regional, sectoral and international technology centres, networks, organizations and private sector entities.”[6]

Despite efforts by the Technology Mechanism and its two complementary bodies, developing countries still face gaps in climate technology. In anticipation of COP21, many developing countries stressed the importance of technology development and transfer in their intended nationally determined contributions (INDCs), explaining that achieving their emissions-reduction targets would not be possible without international help through technology development and transfer, finance, and capacity building.[7] At COP21, developed country Parties adamantly opposed language obliging them to provide support for technology development and transfer to developing country Parties.

Technology Development and Transfer at COP21 and in the Paris Agreement

The Paris Agreement devotes one article, Art. 10, to technology development and transfer. With six paragraphs, Article 10 is an average-sized article in the Paris Agreement. These six paragraphs, along with COP21 decision paras. 66–71, focus mainly on acknowledging the importance of cooperative action in “fully realizing technology development and transfer,”[8] designating support to developing country Parties for implementing the Article, and establishing the preexisting Technology Mechanism as the governance mechanism for technology development and transfer under the new Agreement.

No Explicit Support Required from Developed Countries

Under the Paris Agreement the Parties agreed to share a “long-term vision” related to “fully realizing technology development and transfer.”[9] The Parties also agreed that they all “shall strengthen cooperative action on technology development and transfer” (emphasis added). Nevertheless, achieving the long-term vision through cooperative action will be difficult to achieve without support from developed country Parties. The Paris Agreement does not explicitly require developed countries to provide support for technology development and transfer.

At COP21, various developing country Parties and negotiating groups proposed ideas for enhancing technology in developing countries. [10]  The Like-Minded Group of Developing Countries advocated for a global goal in which developed countries would transfer technologies, know-how, and financial resources for research and development to developing countries in proportion to technology needs.[11] India sought to address intellectual property related barriers through financial resources from developed countries. The African Group proposed a technology framework to provide guidance related to technology assessments, especially in identifying ways to enhance access to technology and address barriers.[12] Developed country Parties opposed these proposals by offering options of “no text” for what is now Art. 10.6.

Ultimately, the Parties agreed that support for technology development and transfer “shall be provided to developing country parties,” but without an explicit obligation for developed countries to provide it.[13] Prior drafts up through the December 10 draft identified “developed country Parties” as the source of support needed for the implementation on the article.[14] The Paris Agreement instead obliges the Technology Mechanism and the Financial Mechanism of the Convention to support developing countries’ access to technology. Linking these two mechanisms allows for collaborative approaches to technology development and transfer to developing country Parties,[15] “in particular for early stages of the technology cycle.”[16]

Governance from the Technology Mechanism

Implementing Article 10 requires a strong governance mechanism capable of acquiring the much-needed support for technology development and transport. At COP21, the Parties selected the existing Technology Mechanism to serve as the governance mechanism for technology development and transfer under the Paris Agreement.[17] They also established a technology framework “to provide overarching guidance to the work of the Technology Mechanism” in promoting and facilitating technology development and transfer.[18]

The COP21 decision paragraphs 66–71 elaborate on the technology framework. These paragraphs include the Parties’ decisions to:

• strengthen the Technology Mechanism with further work from the TEC and CTCN relating to technology research, development, and enhancement of capacities and technologies;
• begin elaborating the technology framework established under Art. 10.4 at the SB44 meeting in Bonn and to make a report at CMA1;
• periodically assess the effectiveness and adequacy of support provided to the Technology Mechanism for supporting implementation of Art. 10; and
• elaborate on the scope of, and modalities for, the periodic assessment of adequacy and support for technology listed above.

Much work is left to implement Article 10.

Conclusion

Article 10 of the Paris Agreement reflects the overwhelming importance and the deep-seeded tension surrounding the topic of technology development and transfer at UNFCCC negotiations. Tasking the Technology Mechanism and the Financial Mechanism with supporting technology in developing countries leaves unanswered questions over the adequacy of technology funding. As discussed in the Art. 9 analysis, the Financial Mechanism is one of the least progressive components of the Paris Agreement and leaves developing country Parties with limited assurance of receiving the funds they need for technology research and implementation.

Moving forward, technology development and transfer will continue to be an area of negotiation. In particular, the Parties will have to work together to clarify developed country Parties’ role in providing support for technology development and transfer and to solidify the functions of the technology framework and the Technology Mechanism.

[1] https://sites.duke.edu/duketoparis/2015/12/15/technology-transfer-and-the-paris-agreement/

[2] http://unfccc.int/ttclear/misc_/StaticFiles/gnwoerk_static/TEM/0e7cc25f3f9843ccb98399df4d47e219/174ad939936746b6bfad76e30a324e78.pdf

[3] http://unfccc.int/ttclear/misc_/StaticFiles/gnwoerk_static/TEM/0e7cc25f3f9843ccb98399df4d47e219/174ad939936746b6bfad76e30a324e78.pdf, 2.

[4] Id.

[5] Id. at 5.

[6] Id. at 7.

[7] http://voxeu.org/sites/default/files/file/de%20coninck%20and%20bhasin.pdf

[8] Paris Agreement Art. 10.1

[9] Paris Agreement Art. 10.1

[10] http://twnetwork.org/climate-change/what-countries-agreed-under-paris-agreement-–-part-3

[11] Id.

[12] Id.

[13] Paris Agreement Art. 10.6

[14] Paris Agreement Draft Text, 10 Dec at 21:00, Art. 7.6; see also Paris Agreement Draft Texts, 5 Dec Art. 7.7, 4 Dec at 10:00 Art. 7.7 Option 1, and ADP 2-11 Art. 7.5 Option 1 (all stating, “Developed country Parties…shall provide support for the research, development and application of environmentally sound technologies and facilitate the transfer of and access to such technologies for developing country Parties”).

[15] http://twnetwork.org/climate-change/what-countries-agreed-under-paris-agreement-–-part-3

[16] Paris Agreement Art. 10.5

[17] Paris Agreement Art. 10.3

[18] Paris Agreement Art. 10.4

For more detail on how and when this Paris Agreement section changed during the COP21 negotiations, click here.

Introduction

Capacity-building is important to the Paris Agreement because developing countries often lack the capacity needed to take climate change action. Many factors impede their ability to take climate action, including: insufficient public awareness, research, technology, policies, systems, and processes of climate change.[1] On a systemic level, “capacity building efforts need greater coordination, coherence, monitoring, reviewing and reporting.”[2] Although climate needs vary country to country, increasing coordination through UNFCCC entities would presumably help enhance the capacity of developing country Parties.[3]

Capacity-Building in the Paris Agreement

At five paragraphs, Art. 11 on capacity-building is an average-sized article in the Paris Agreement. The article begins broadly by acknowledging the importance of “enhance[ing] the capacity and ability of developing country Parties…to implement adaptation and mitigation actions.”[4]  It acknowledges that capacity-building should be a country-driven process at national, subnational, and local levels.[5] Article 11 also states that “[c]apacity-building activities shall be enhanced through appropriate institutional arrangements” and mandates that the COP at CMA1 shall consider and adopt a decision related to initial arrangements for capacity-building.[6]

During the negotiations at COP21, the G77 and China promoted an international capacity-building mechanism that would enhance and coordinate capacity building.[7] Developed countries opposed the idea of creating a new mechanism.

The Parties agreed instead to establish the Paris Committee on Capacity-building (PCCB) as the governance mechanism for capacity-building in the Paris Agreement—but they did so in the decision text, not in the Paris Agreement.[8] The aim of the PCCB is to “address gaps and needs, both current and emerging, in implementing capacity-building in developing country Parties.” Many of the remaining decision paragraphs assign specific tasks to the PCCB, such as creating a work plan for 2016–2020 and preparing annual technical progress reports on it.[9] The work plan should identify capacity gaps and needs, promote development of tools and methodologies for implementing capacity building, and foster global, regional, national and subnational coordination.[10]

Developed countries, in particular the United States, negotiated to include a transparency provision in Art. 11, which became the “Capacity-building Initiative for Transparency” in Transparency section of the decision text.[11]

Conclusion

Overall, Art. 11 and its accompanying COP21 decision paras. 72–81 favor providing support to developing country Parties to build their capacity to take climate actions. But Art. 11 provides little additional development of existing UNFCCC obligations.  All eyes remain on the PCCB’s work plan and progress on it.

[1] http://www.wri.org/blog/2015/12/3-reasons-why-capacity-building-critical-implementing-paris-agreement

[2] Id.

[3] Id.

[4] Paris Agreement Art 11.1

[5] Paris Agreement Art. 11.2

[6] Paris Agreement Art. 11.5

[7] http://twnetwork.org/climate-change/what-countries-agreed-under-paris-agreement-–-part-3

[8] COP21 decision para. 72

[9] Id. para. 81

[10] Id. paras. 73–74

[11] Id. para 85

Introduction

For more detail on how and when this Paris Agreement section changed during the COP21 negotiations, click here.

The combined Paris Agreement Articles 13, 14, and 15 heralds a new era of transparency in climate change negotiations. The top-down approach of the Kyoto Protocol has given way to the bottom-up approach of the Paris Agreement. The Paris Agreement does not mandate emissions reduction goals; Parties are asked to nationally determine their mitigation, adaptation, and means of implementation contributions. Transparency of the contributions creates trust between the Parties. Transparency and trust fuel individual and collective ambition. Ambition ratchets up each Party’s contributions to meet the goals established in the Paris Agreement.

The Paris Agreement is not a contractual arrangement to reduce emissions. The Agreement is an aspirational document that aims to keep global warming below 2°C and pursues efforts to keep the increase below 1.5°C.[1] There is no requirement for Parties to set their emissions reductions to meet these goals. What exists is a system that creates trust, confidence, and ambition by sharing and reviewing nationally determined contributions (NDCs). Every five years, starting in 2023, a global stocktake will determine the collective progress towards meeting the Agreement’s goals.

Several themes run through Articles. The first theme is that transparency of action and support develops trust and confidence in the Agreement. Transparency of support has not been included in any prior climate agreement. Second, flexibility is maintained for developing country Parties even though the phrase “common but differentiated responsibilities” does not appear. The Agreement imposes some mandatory duties on all Parties but it continues to differentiate between developing and developed country Parties for other reporting obligations. Third, the reporting requirements are expanded beyond mitigation. Parties report on mitigation efforts, adaptation efforts, and support received and provided. Fourth, capacity building is a significant concern as reporting requirements are imposed upon developing country Parties, least developed countries, and Small Island Developing States.

Transparency

Article 13 - Transparency is the second largest Article in the Agreement. In fifteen paragraphs, the Article establishes a comprehensive regime for reporting NDCs. The Article builds off the commitment of all Parties “to undertake and communicate ambitious efforts.”[2] The communication of those efforts is captured in Article 13, collectively assessed in Article 14, and used in Article 15 to facilitate implementation and compliance.

A Framework for Mutual Trust and Confidence

Art. 13 establishes an “enhanced framework for transparency of action and support”.[3] The framework will “build mutual trust and confidence and to promote effective implementation” of the Agreement. The framework will have “built-in flexibility”, a task that is accomplished without reference to CBDR by taking into account “Parties’ different capacities” and building upon “collective experience.[4]

Article 13 compiles reports on actions taken under other Articles. The purpose of the framework for transparency of action is to provide “a clear understanding of climate change action in the light of the Convention as set out in its Article 2, including clarity and tracking of progress towards achieving Parties’ individual nationally determined contributions under Article 4, and Parties’ adaptation actions under Article 7, including good practices, priorities, needs, and gaps.” [5] The information collected will “inform the global stocktake under Article 14.” [6]

The article creates separate frameworks for transparency of action[7] and transparency of support.[8] This is the first time that an international climate agreement addresses support. The framework for transparency of support is to “provide clarity on support provided and received by relevant individual Parties in the context of climate change actions under Articles 4, 7, 9, 10, and 11, and, to the extent possible, provide a full overview of aggregate financial support provided” to inform the global stocktake process presented in Art. 14.[9] As developing country Parties assume obligatory reporting duties for action, the addition of mandatory duties to report on support could be a trade-off taken on by developed country Parties.

Expanded Coverage and Flexibility

The Paris Agreement represents a new point in the global efforts to combat climate change. The Paris Agreement covers all 196 Parties to the UNFCCC. The Kyoto Protocol covered only the Parties that signed it and within that group, the Kyoto Protocol only imposed mandatory duties upon Annex I/developed countries. Art.13 covers all Parties: developed countries, developing countries, least developed countries (LDCs), and Small Island developing States (SIDS). Art. 13 imposes multiple mandatory reporting duties upon the Parties but it carves off exemptions to create flexibility.

Art. 13 does not contain the term “common but differentiated responsibilities” to differentiate between different Parties. Instead, the Article is organized to provide flexibility where and when it is needed by the Parties. The transparency frameworks “shall provide flexibility in the implementation of the provisions of the Article to those developing country Parties that need it in light of their capacities.”[10] Additionally, the transparency framework shall recognize “the special circumstances of the least developed countries and small island developing States”.[11]

The flexibility is created in three different ways: by splitting mandatory and optional reporting requirements between the developed and developing country Parties, the length of the reporting period, and by the development of “common modalities, procedures, and guidelines.”[12] The provisions divide duties between Each Party, developed country Parties, and developing country Parties. Only two of the provisions equally apply to all Parties, the two most well developed concepts in the UNFCCC, mitigation and adaptation. Each Party, all 196 signatories to the UNFCCC, “shall regularly provide” information on their “national inventory report of anthropogenic emissions by sources and removals by sinks”[13] and information “necessary to track progress made in implementing and achieving its nationally determined contribution under Article 4.”[14] Reporting on adaptation is not mandatory as each Party “should also provide information related to climate change impacts and adaptation under Article 7, as appropriate.”[15]

Obligations to report on support vary between the Parties according to their development status. Developed country “shall” and other Parties that provide support “should” provide information on “financial, technology transfer and capacity-building support provided to developing country Parties under Articles 9, 10, and 11.”[16] Developing country Parties do not have a mandatory duty but are encouraged to report on the “support needed and received under Articles 9, 10, and 11.”[17]

Flexibility is also developed in the reporting period requirements. All Parties are expected to submit the above information at least on a biennial basis. However, least developed country Parties and small island developing States are permitted to “submit this information at their discretion.”[18]

The development of the modalities, procedures, and guidelines is the third major source of flexibility in the Article. The Conference of the Parties, at its first session, shall adopt “common modalities, procedures, and guidelines, as appropriate, for the transparency of action and support.”[19] Their development is assigned to the Ad Hoc Working Group on the Paris Agreement (APA) who will present recommendations at COP 22.[20] The APA’s development process is intended to take into account “the types of flexibility available to developing country Parties that need it on the basis of their capacities”.[21]

Support Provided and Received

The framework for transparency of support covers flows of support from developed country Parties and other Parties to developing country Parties.[22] The framework is intended to deliver “clarity on support provided and received by relevant individual Parties.”[23] As discussed above, the reporting duties for developed and developing country Parties are not the same. Developed country Parties must report on their support provided.  Developing country Parties do not have the same mandatory duty. They are requested to provide information on the support needed and received. The framework also expands to “provide a full overview of aggregate financial support provided, to inform the global stocktake under Article 14.”[24] This parallels earlier collective financing promises. For example, the promise of $100 billion per year of additional support by 2020 is a collective promise,[25] therefore the assessment of the support provided is a collective assessment of progress towards meeting amount of support promised.

The inclusion of “support needed”[26] should increase the capacity and ambition of developing country Parties. “Support needed” helps identify gaps in the funding available to developing country Parties and it allows for support efforts to target priority areas. As will be discussed later, capacity building is a core element of the ambitious nature of the Agreement by boosting the desire and ability of Parties to increase and meet their commitments.

Review Process

The mandatory reporting obligations are subject to a technical expert review process.[27] For each Party, their national inventory reports on anthropogenic emissions by sources and removals by sinks of greenhouse gases and progress made on implementing and achieving NDCs are included in the review. Developed country Parties will also have information on the financial, technology transfer, and capacity building support they have provided to developing country Parties assessed.[28] To ensure consistency of information, the optional reporting obligations are not included in the technical review process.

The review process is a facilitative, non-adversarial process that does not target individual country Parties. The directions given to the technical experts are precisely worded to be facilitative and non-confrontational. The review process considers “the Parties support provided, as appropriate and its implementation and achievement of its nationally determined contribution.”[29] Additional assistance is provided to developing country Parties. “[I]n light of their capacities, the review process shall include assistance in identifying capacity-building needs” of developing country Parties.[30] Furthermore, each Party “shall participate in a facilitative, multilateral consideration of progress with respect to efforts under Article 9, and its respective implementation and achievement of its nationally determined contribution.” Even when a country Party is subject to individual scrutiny, the process is a “facilitative, multilateral consideration of progress.”[31] The review process also has a mandatory duty to “identify areas of improvement for the Party”, a process that could feed into Article 15’s facilitating implementation and compliance mechanism.

The technical expert review process draws upon the collective experience”[32] of already established UNFCCC measurement, reporting, and verification system but maintains the ambitious tone of the Agreement. The review process shall build upon the international assessment review process for developed countries[33] and the international consultation and analysis process for developing countries.[34] Ambition is built into how the review process is developed. The new system is expected to “eventually supercede”[35] the old measurement, verification, and measurement system.

Capacity Building

Capacity building is a key component of the Paris Agreement and Article 13 addresses it in two different ways. First, the reporting requirement under the framework for transparency of support includes information on support provided and needed for capacity building in developing country Parties to help them meet their mitigation and adaptation goals.[36] Second, the burden of the new reporting requirements on developing countries is identified and remedied. “Support shall be provided to developing country for the implementation of this Article”[37] and “support shall also be provided for the building of transparency-related capacity of the developing country Parties on a continuous basis.”[38] It must be noted, that unlike the other mandatory duties in this Article, these provisions do not assign responsibility to a particular group of Parties.

For countries to be ambitious, they need to have the capacity to both implement the Agreement and report upon their implementation of the Agreement. The Decision Text establishes a Capacity-Building Initiative for Transparency to “build institutional and technical capacity, both pre- and post- 2020” that will support “developing country Parties, upon request, in meeting their enhanced transparency requirements as defined in Article 13 of the Agreement in a timely manner.”[39] Since the reporting obligations are some of the Agreement’s few mandatory duties, the Initiative targets an area where developing country Parties are taking on new responsibilities.

[1] Paris Agreement, Art. 2.1(a).

[2] Paris Agreement, Art. 3.

[3] Paris Agreement, Art. 13.1

[4] Paris Agreement, Art. 13.1

[5] Paris Agreement, Art. 13.5.

[6] Paris Agreement, Art. 13.5..

[7] Paris Agreement, Art. 13.5.

[8] Paris Agreement, Art. 13.6.

[9] Paris Agreement, Art. 13.6.

[10] Paris Agreement, Art. 13.2.

[11] Paris Agreement, Art. 13.3.

[12] Paris Agreement, Art. 13.13.

[13] Paris Agreement, Art. 13.7(a)

[14] Paris Agreement, Art. 13.7(b).

[15] Paris Agreement, Art. 13.8.

[16] Paris Agreement, Art. 13.9.

[17] Paris Agreement, Art. 13.10.

[18] Decision 1/CP.21, paragraph 90.

[19] Paris Agreement, Art. 13.13.

[20] Decision1/CP.21, paragraph 91.

[21] Decision1/CP.21, paragraph 94(a); similar language is found in Decision 1/CP.21, paragraph 92(b).

[22] Paris Agreement, Art. 13.6.

[23] Paris Agreement, Art. 13.6.

[24] Paris Agreement, Art. 13.6.

[25] http://cancun.unfccc.int/financial-technology-and-capacity-building-support/new-long-term-funding-arrangements/.

[26] Paris Agreement, Art. 13.10.

[27] Paris Agreement, Arts. 13.11 and 13.12.

[28] Paris Agreement, Art. 13.11.

[29] Paris Agreement, Art. 13.13.

[30] Paris Agreement, Art. 13.11.

[31] Paris Agreement, Art. 13.11.

[32] Paris Agreement, Art. 13.1.

[33] Decision 1/CP.16, paragraphs 40-47.

[34] Decision 1/CP.16, paragraphs 60-64.

[35] Decision 1/CP.21, paragraph 98.

[36] Paris Agreement, Arts. 13.9 and 13.10.

[37] Paris Agreement, Art. 13.14.

[38] Paris Agreement, Art. 13.15.

[39] Decision 1/CP.21 paragraph 84.

Introduction

For more detail on how and when this Paris Agreement section changed during the COP21 negotiations, click here.

The combined Paris Agreement Articles 13, 14, and 15 heralds a new era of transparency in climate change negotiations. The top-down approach of the Kyoto Protocol has given way to the bottom-up approach of the Paris Agreement. The Paris Agreement does not mandate emissions reduction goals; Parties are asked to nationally determine their mitigation, adaptation, and means of implementation contributions. Transparency of the contributions creates trust between the Parties. Transparency and trust fuel individual and collective ambition. Ambition ratchets up each Party’s contributions to meet the goals established in the Paris Agreement.

The Paris Agreement is not a contractual arrangement to reduce emissions. The Agreement is an aspirational document that aims to keep global warming below 2°C and pursues efforts to keep the increase below 1.5°C.[1] There is no requirement for Parties to set their emissions reductions to meet these goals. What exists is a system that creates trust, confidence, and ambition by sharing and reviewing nationally determined contributions (NDCs). Every five years, starting in 2023, a global stocktake will determine the collective progress towards meeting the Agreement’s goals.

Several themes run through Articles. The first theme is that transparency of action and support develops trust and confidence in the Agreement. Transparency of support has not been included in any prior climate agreement. Second, flexibility is maintained for developing country Parties even though the phrase “common but differentiated responsibilities” does not appear. The Agreement imposes some mandatory duties on all Parties but it continues to differentiate between developing and developed country Parties for other reporting obligations. Third, the reporting requirements are expanded beyond mitigation. Parties report on mitigation efforts, adaptation efforts, and support received and provided. Fourth, capacity building is a significant concern as reporting requirements are imposed upon developing country Parties, least developed countries, and Small Island Developing States.

Article 14 - Global Stocktake

The global stocktake process is the logical outgrowth of the new transparency provisions and the bottom-up approach of the Agreement. The three paragraphs of the Article set forth a process for a mandatory regular collective assessment of the information submitted by individual Parties. The stocktake will “assess the collective progress towards achieving the purpose of this Agreement and its long-term goals.”[1] The stocktake will consider “mitigation, adaptation, and the means of implementation and support, and in the light of equity and the best available science” and it will do so in a “comprehensive and facilitative manner”.[2] Best available science includes IPCC reports thus providing the Agreement with a continuously updated picture of the impacts of climate change.[3]

The stocktake will be undertaken by the Conference of the Parties starting in 2023 and continuing every five years thereafter “unless otherwise decided by the Conference of the Parties.” There is no end date for the stocktake process; the stocktake is intended to be an ongoing and evolving process built upon the information supplied by submission of each Parties’ NDCs, the framework for transparency of action, and the framework for transparency of support.[4]

The stocktake fuels the ambitious nature of the Paris Agreement at both the national and international level. The collective assessment that maintains individual nation sovereignty but the results of the stocktake “shall inform Parties in updating and enhancing, in a nationally determined manner, their actions and support with the relevant provisions of this Agreement”.[5] The Parties are either on a 5-year or 10-year time track for updating their contribution frameworks.[6] The outcome of the stocktake will feed into those regular updates. The stocktake also has a more general goal of enhancing “international cooperation for climate change.”[7]

There is no termination date in this agreement like in the Kyoto Protocol. It is meant to evolve and change and increase in ambition therefore there needs to be a continuous process for sharing information and measurement against the collective goals to cap temperature rises at 2 degrees Celsius or 1.5 degrees Celsius.

[1] Paris Agreement, Art. 14.1.

[2] Paris Agreement, Art. 14.1.

[3] Decision 1/CP.21 §§ 99 and 100.

[4] Paris Agreement, Arts. 13.5 and 13.6.

[5] Paris Agreement, Art. 14.3.

[6] Benito Miller et al., A Dynamic Ambition Mechanism for the Paris Agreement – Discussion Note (March 2016), http://www.eurocapacity.org/downloads/Dynamic_Ambition_Mechanism_for_Paris.pdf.

[7] Paris Agreement, Art. 14.3

Introduction

For more detail on how and when this Paris Agreement section changed during the COP21 negotiations, click here.

The combined Paris Agreement Articles 13, 14, and 15 heralds a new era of transparency in climate change negotiations. The top-down approach of the Kyoto Protocol has given way to the bottom-up approach of the Paris Agreement. The Paris Agreement does not mandate emissions reduction goals; Parties are asked to nationally determine their mitigation, adaptation, and means of implementation contributions. Transparency of the contributions creates trust between the Parties. Transparency and trust fuel individual and collective ambition. Ambition ratchets up each Party’s contributions to meet the goals established in the Paris Agreement.

The Paris Agreement is not a contractual arrangement to reduce emissions. The Agreement is an aspirational document that aims to keep global warming below 2°C and pursues efforts to keep the increase below 1.5°C.[1] There is no requirement for Parties to set their emissions reductions to meet these goals. What exists is a system that creates trust, confidence, and ambition by sharing and reviewing nationally determined contributions (NDCs). Every five years, starting in 2023, a global stocktake will determine the collective progress towards meeting the Agreement’s goals.

Several themes run through Articles. The first theme is that transparency of action and support develops trust and confidence in the Agreement. Transparency of support has not been included in any prior climate agreement. Second, flexibility is maintained for developing country Parties even though the phrase “common but differentiated responsibilities” does not appear. The Agreement imposes some mandatory duties on all Parties but it continues to differentiate between developing and developed country Parties for other reporting obligations. Third, the reporting requirements are expanded beyond mitigation. Parties report on mitigation efforts, adaptation efforts, and support received and provided. Fourth, capacity building is a significant concern as reporting requirements are imposed upon developing country Parties, least developed countries, and Small Island Developing States.

Article 15 – Facilitating Implementation and Compliance

Article 15 continues the focus on ambition developed in Articles 13 and 14. Article 13 establishes a transparency regime that incentivizes country Parties to increase their ambition. Article 14 establishes the global stocktake which collectively assesses the information submitted from individual Parties and identifies opportunities for additional measures. Article 15 tasks a newly established Committee to “facilitate implementation and promote compliance with the provisions of the Agreement.”[1]

The Committee’s operating protocols are designed to preserve the national sovereignty of individual Parties while creating layers of flexibility. The mechanism is a Committee that “shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial, and non-punitive.”[2] The choice of a non-punitive mechanism contrasts the Kyoto Protocol’s approach to noncompliance which included the “development of an indicative list of consequences.”[3] The flexible nature of the Agreement is preserved by directing the Committee to pay “particular attention to the respective national capacities and circumstances of the Parties.”[4]  The Committee’s annual reporting requirements ensure that the theme of trust through transparency continues.[5]

[1] Paris Agreement, Art. 15.1.

[2] Paris Agreement, Art. 15.2.

[3] Kyoto Protocol, Art. 18.

[4] Paris Agreement, Art. 15.2.

[5] Paris Agreement, Art. 15.3.

[1] Paris Agreement, Art. 2.1(a).