Previewing the Paris Climate Change Conference Daniel Bodansky Arizona State University Civic Exchange November 6, 2015 Overview Evolution of the global climate effort Lessons learned Framing for the Paris negotiations Key issues for a Paris agreement 211/5/15 Development of the UN Climate Regime: A Play in Four Acts Bottom-up Pledges 1992 Framework Convention (UNFCCC) General system of governance 1997 Kyoto Protocol Negotiated, binding emissions targets CopenhagenDurban Platform Paris Act I Act II Act III Act IV /5/15 Act 1 UNFCCC Establishes basic system of governance Ultimate objective and principles General obligations to develop national programs Institutional arrangements No binding emissions targets Negotiations began in 1991, finished in 1992 Convention opened for signature at Rio in 1992, entered into force in 1994 195 parties 1992 UNFCCC 1997 Kyoto Protocol CopenhagenDurban Platform Paris Act I Act II Act III Act IV /5/15 Act II Kyoto Protocol Key features: Internationally-negotiated and -agreed limits on GHG emissions Market-based architecture favored by US Legally-binding Detailed rules, rigorous accounting, compliance mechanism Strong differentiation: targets applicable only to developed countries Developed countries Top-down regulatory approach Internationally-negotiated, absolute emissions targets National policies and measures 1992 UNFCCC 1997 Kyoto Protocol CopenhagenDurban Platform Paris Act I Act II Act III Act IV /5/15 Act III: Copenhagen / Cancun Parallel nonbinding framework established via political agreement (Copenhagen), followed by set of COP decisions (Cancn) Key elements Bottom-up pledges Not legally binding All countries involved Also goal of limiting GW to 2, new finance, reporting and review mechanisms Bottom Up Approach International policy National policies and measures 1992 UNFCCC 1997 Kyoto Protocol Copenhagen Durban Platform Paris Act I Act II Act III Act IV /5/15 7 Act IV o Durban Platform for Enhanced Action (2011) o Parties agree to launch a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties o Agreement to be reached by COP 21 and implemented from 2020 o No reference to common but differentiated responsibilities and respective capabilities (CBDR-RC) 1992 UNFCCC 1997 Kyoto Protocol CopenhagenDurban Platform Paris Act I Act II Act III Act IV /5/15 Act IV: What approach to adopt? Kyoto Top-down regulatory approach Legally-binding Firewall between developed and developing countries Copenhagen/Cancun Bottom-up Softer law / political decisions Greater symmetry, parallelism 911/5/15 What is the goal? Environmental effectiveness is a function of three variables Ambition Participation Compliance Variables interdependent: Strengthening ambition does not help if it leads to less participation and/or compliance EE: f(A,P,C) 1011/5/15 What is the role of the international climate regime? Prescriptive model: Paris Agreement tells states what to do Contractual model: Paris agreement memorializes/reflects what states agree to do Facilitative/catalytic model Paris agreement catalyzes, encourages, reinforces action 1111/5/15 Prescriptive model Paris Agreement imposes obligations that make some countries better off and others worse off: winners and losers 1211/5/15 Prescriptive model Why would countries that would be made worse off agree? And is prescriptive model likely to produce compliance? 1311/5/15 Contractual model Paris Agreement based on reciprocity States accept commitments in exchange for commitments by others. Pareto superior: everyone better off Integrative/interest-based bargaining: goal is win-win outcomes Getting to Yes Contract zone For negotiations to succeed, there must be a contract zone, i.e., a set of agreements that leave all participants better off and are acceptable domestically. 1411/5/15 But the negotiations arent easy 11/5/1515 Why the contractual model isnt working Climate change issue driven by domestic politics Most countries not willing to do more, in exchange for agreement others 11/5/1516 Facilitative model States willing to take action on own Role of international regime Raises/focuses attention > catalyzes action Transparency focuses soft pressure Assistance to enhance capacity 1711/5/15 Lessons learned Kyoto: strong legal and technical rigor, but shrinking participation 2 nd -round targets cover only 13% of global emissions Copenhagen/Cancn: broad participation but low ambition 90+ pledges covering 80+% of emissions fall well short of 2C pathway 1811/5/15 Copenhagen/Cancun pledges vs. Kyoto commitments Source: UNEP Emissions Gap Report (2013) 1911/5/15 Copenhagen emissions gap Source: UNEP Emissions Gap Report (2010) 2011/5/15 Hybrid Approach National Flexibility International Rules Bottom-UpHybridTop-Down 2111/5/15 Rationale for hybridity Promote participation Allow experimentation Risk management > greater ambition Promote transparency and accountability Promote reciprocity National Flexibility International Rules 2211/5/15 Hybridity in the Paris Agreement Nationally-determined contributions (NDCs) to promote flexibility Multilateral rules to promote accountability, reciprocity Long-term goal Rules on formulation, presentation and recording of NDCs Rules on revising/updating NDCs Rules on accountability/transparency in implementing NDCs Rules on subsequent rounds of NDCs 2311/5/15 Framing for the Paris negotiations Warsaw decision (2013) Parties invited to communicate their intended nationally determined contributions (INDCs) to the new agreement well in advance of Paris Explicitly without prejudice to legal nature of contributions Lima decision (2014) Guidance on information to accompany INDCs Parameters for Paris INDCs are to represent a progression beyond current undertaking Agreement is to reflect CBDR-RC in light of different national circumstances 2411/5/15 Intended nationally-determined contributions (INDCs) To date, INDCs submitted by ~150 countries, accounting for nearly 90% of global emissions Most set some form of emission reduction target 58 are absolute 4 are intensity based (emissions per unit GDP) 62 are pegged to projected BAU All are for 2030 except for US, Gambia, Grenada (2025), Cameroon and Congo (2035) and Armenia (2050) 61 are partly or fully conditional on availability of international support or market mechanisms 28 anticipate using international market mechanisms; 23 others will consider them in the future 2511/5/15 How the Paris deal is shaping up Structure of outcome Paris outcome will be a package with a number of different elements: A core agreement Ancillary instrument to house NDCs COP decision(s) adopted at COP 21 or thereafter A political declaration?? 2611/5/15 How Paris deal is shaping up Legal character of core agreement Core agreement will be a treaty within meaning of international law Under Vienna Convention, a treaty is an international agreement concluded between States in written form and governed by international lawwhatever its particular designation What the Paris agreement is called protocol, accord, etc. is legally irrelevant The legal form of an agreement can be distinct from the legal character of specific elements Legal agreement can contain both binding and non- binding provisions 11/5/1527 How the Paris deal is shaping up Structure of outcome Timing: What to include, what to put off? Readiness which elements ready for resolution in Paris which elements need more time? Credibility which elements essential for Paris outcome to be climate-credible? Placement: What goes in core agreement vs. COP decision? Legal character legally-binding elements must be in Paris Agreement or have hook Fixed vs. changeable agreement more difficult to amend > rules requiring change should be in COP decisions Parity distribution of elements across instruments and their timing 11/5/1528 2911/5/15 How the Paris deal is shaping up Structure of outcome How the Paris deal is shaping up Long-term vision Agreement likely to reaffirm 2 temperature goal May include a long-term decarbonization / zero net emissions goal 3011/5/15 How the Paris deal is shaping up Mitigation: NDCs Agreement will give countries considerable flexibility in defining their NDCs Likely to include procedural commitments to prepare, submit, maintain, and periodically update NDC, and to report on progress in achieving NDC May require submission of NDC as a condition of joining agreement 3111/5/15 How the Paris deal is shaping up Legally-binding character of NDCs Open issue whether NDCs will be legally-binding If agreement requires each party to achieve or implement its NDC, then NDCs could be considered legally binding Does legally-binding matter? Many argue that making NDCs legally-binding would provide greater assurance of compliance But legal-bindingness does not assure compliance and could discourage participation and ambition Plus, other factors can also contribute to compliance, including transparency and review mechanisms 3211/5/15 How the Paris deal is shaping up: Other issues on NDCs NDCs likely to be housed outside the agreement, in a registry maintained by UNFCCC, rather than in an annex to the agreement Agreement may specify some parameters for NDCs: quantifiable, in part unconditional, progression Agreement likely to specify an ongoing cycle of contributions 11/5/1533 How the Paris deal is shaping up Differentiation NDCs involve de facto self- differentiation Agreement unlikely to continue explicit differentiation through annexes But agreement may include principles/qualifiers relevant to differentiation Progression Developed countries to take lead Countries in a position / ready to do so 11/5/1534 How the Paris deal is shaping up Ambition 11/5/1535 INDCs relative to 2-degree pathway 11/5/1536 How the Paris deal is shaping up Ambition Agreement will likely seek to build ambition over time through periodic global stocktakings of collective progress and updating of national contributions (likely every 5 years) Also likely to set an expectation of no backsliding or forward progression in the scale, scope and/or type of parties contributions 11/5/1537 How the Paris deal is shaping up Transparency/accountability Agreement will likely either Establish common transparency framework, with built-in flexibility for differing national capacities Tiered approach, as transition from current bifurcated approach to common framework 3811/5/15 How the Paris deal is shaping up Carbon markets Possible roles of 2015 Agreement with respect to linkages among national programs Prohibit or discourage linkage Silence > legal and regulatory uncertainty Authorize linkage, explicitly or implicitly, but with no details Rules/institutional arrangements developed through either future UNFCCC negotiating sessions or bilateral/plurilateral agreements Establish institutional arrangements and rules 3911/5/15 How the Paris deal is shaping up Adaptation Paris agreement likely to: Establish a global goal of reducing vulnerability, increasing resilience Encourage parties to engage in national adaptation planning process and to submit an adaptation communication Provide for a periodic high-level global stocktaking to share experiences and assess progress 4011/5/15 How the Paris deal is shaping up Finance Agreement likely will try to enlarge the donor base, by recognizing support from countries ready to provide it Open issue whether agreement will include a post-2020 numerical finance goal 4111/5/15 Why does Paris matter? Outcome will fall short on two criteria: INDCs on table in Paris wont put us on a pathway consistent with 2C goal Countries targets probably wont be legally binding But Paris can for the first time establish a durable international framework that: Gets all the major players on board Provides transparency and accountability Works to promote rising ambition The additive effect: greater confidence that all are contributing their fair share enables each to do more 11/5/1542 11/5/1543 Thank you!