University of Auckland Guest Lecture

COMMON IN DURBAN BUT DIFFERENTIATED IN PARIS?The Durban Platform and the rocky road through

Paris

OUTLINE: PART 11. Introduction: Who I am and what I’m talking about2. Background: the UNFCCC regime from 1992-20093. The 2011 Durban reset: ‘applicable to all’4. Negotiations from 2012-20145. Questions

BREAK

OUTLINE: PART 21. Negotiations this year: Geneva to Bonn to Bonn to

Bonn2. Key issues for Paris:

1. Differentiation2. Legal form3. Finance4. Loss and damage

3. Conclusion and questions

WHO I AM AND WHAT I’M TALKING ABOUT

1. New Zealand lawyer

2. My research: Differentiation

3. Climate activist

When: 7:00 pm, Thursday 24 September 2015Where: ClockT032/105-032 theatre, University of AucklandWhy: The UN is about to adopt new Global Goals for ending poverty and protecting our environment

Bring your own torch! Snacks provided.

SpeakersBarry Coates, former Oxfam NZ executive directorJulie Anne Genter, Green Party MPAlex Johnston, Fossil Free UOADavid Tong, Fast for the Climate coordinatorDewy Sacayan, youth delegate to COP20

THE UNFCCC FROM 1992-2009

1. Rio 1992: The Convention

2. Berlin Mandate

3. Kyoto Protocol

4. Bali Action Plan

5. Copenhagen

THE CONVENTION (1992)The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of

equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating

climate change and the adverse effects thereof.- UNFCCC, art 3(1)

[…] taking into account [the UNFCCC Parties’] common but differentiated responsibilities and their specific national and

regional development priorities, objectives and circumstances […]- UNFCCC, art 4

BERLIN TO KYOTO (1995-1997)

‘In the developed world only two people ride in a car, and yet you want us to give up riding on a bus.’- Lead Chinese negotiator, COP 3 in Kyoto, 1997

• Berlin mandate imposed strict firewall of differentiation• Carried over into Kyoto Protocol

THE BALI ACTION PLAN (2007-2009)

1. Quantified emissions limitation and reduction objectives (QELROS) for Annex I Parties

2. Nationally appropriate mitigation actions (NAMAS) for Non-Annex Parties

COPENHAGEN

Oh dear.

THE DURBAN RESET: APPLICABLE TO ALL

• New process launched.• Three key points:

1. an agreement ‘with legal force’2. ‘under the Convention applicable to all

Parties’3. to be agreed in 2015 and implemented from

2020

FROM DOHA TO LIMA• Repeated debates about equity and differentiation• Without prejudice ‘Intended Nationally Determined

Contribution’ process• Lima Call for Climate Action confirms Parties’ will be

differentiated – but how?

QUESTIONS AND BREAKComing up: 1. Negotiations this year: Geneva to Bonn to Bonn to

Bonn2. Key issues for Paris:

1. Differentiation2. Legal form3. Finance4. Loss and damage

3. Conclusion and questions

THE INDC PROCESS

• Bottom up commitments

• But not binding – without prejudice

• Due already, but ‘final’ deadline in October

GENEVA (JANUARY)

• A draft text

• But no ‘streamlining’

• 90 pages

• Contains the architectures of about five possible treaties

ADP 2.8 IN BONN (JUNE AND AUGUST)

• The ‘Chair’s Tool’

• Narrowing in towards agreement

• But still unsure: What’s in, what’s out, what’s where?

• Five days of negotiations before Paris in October.

NEGOTIATING DYNAMICS Ambitious / Cooperative

Lacking ambition, lacking cooperation

DevelopedDeveloping

NEGOTIATING DYNAMICS Ambitious / Cooperative

Lacking ambition, lacking cooperation

DevelopedDeveloping

Europe

Umbrella GroupLMDCs

BAS IC

LDCs

SIDS / AOSIS

KEY ISSUES NOW1. Differentiation2. Legal form3. Finance4. Loss and damage

DIFFERENTIATION

• Move towards self differentiation

• But details uncertain

AN EMERGING GENERAL PRINCIPLE?

‘14. The obligations of States are common but differentiated.’- Oslo Principles, 2015

‘In my view, the [common but differentiated responsibilities] principle is not necessary, and it is not helpful. […] To me, this notion is nowhere close to being either hard or soft law […]’

- Susan Biniaz, US Department of State, 2002

TWO ARCHITECTURES FOR MITIGATION COMMITMENTS

1. Top down• Idealised model of Kyoto Protocol• Protocol sets out each Parties’ commitment

2. Bottom up• Each Party sets their own target• Copenhagen Accord and Cancun Agreements

FIVE MODELS IN THE GENEVA DRAFT TEXT

1. Retain the current Annexes2. Draft new Annexes3. Emissions budget and equity reference framework4. Pledge and formal review5. Pledge and ‘chat’

RETAINING CURRENT ANNEXES

• Superficially reflects historical responsibility and respective capabilities

• Eight of the top ten per capita emitters are Non-Annex I

• Grubb: ‘[t]he world has changed much faster than the

UNFCCC’

DRAFTING NEW ANNEXES• Devil would be in the detail• Proposed by the US in Geneva in February• Politically impossible

• LMDCs and BASIC oppose• Russian proposal to amend Annexes stuck in

filibuster

EMISSIONS BUDGET AND EQUITY REFERENCE FRAMEWORK

• Proposed by AOSIS• Ecologically sound in theory• Diplomatically infeasible

PLEDGE AND REVIEW PLUS • May encourage participation• Will require compromises, but is a likely landing

point• Blends bottom-up and top-down elements• Review could be ex ante or ex post• Can build on existing review models

PLEDGE AND ‘CHAT’‘Parties know best their specific circumstances,

responsibilities, capacities and needs’- Switzerland, February 2015

• Winkler: ‘very unlikely’ to achieve ultimate objective• Parties self-assessments unlikely to have ethical basis• Opposed by G77+China in Geneva,

LEGAL FORM

• What goes where?

• What kind of treaty?

FINANCE AND LOSS & DAMAGE

• Finance: GCF and 2020 US$100bn pledge

• Loss and damage: operationalising Warsaw

FORECAST FOR PARIS• One of two pledge and review models• Need for formalised top down elements• Will need finance or loss and damage to get deal• If Parties cannot agree, may collapse into pledge

and chat• Unclear what will be in what kind of agreement, and

what will be in COP decision• And what of Workstream 2 on pre-2020?

QUESTIONS?

(Yes, that’s a negotiator sleeping)