Australia: COP21: The French throw down the gauntlet with new draft text

Last Updated: 15 December 2015
Article by Brendan Bateman

Most Read Contributor in Australia, August 2016

Key Points:

The reaction of those parties to the challenge presented by these latest drafts at COP21 will determine whether an agreement is achieved.

On the afternoon of Wednesday 9 December, the French presidency of the COP released the latest draft of the proposed Paris Agreement and decision text for the COP to give effect to that agreement.

At first glance, the drafts represent a significant effort by the parties to resolve outstanding issues in the rapidly diminishing time left at the conference. The agreement and decision text, along with additional text for an alternative preamble which provides for scaling up of pre-2020 ambition, are now 29 pages in total, with a significant reduction in the amount of bracketed text and options from the previous drafts. However it appears that the French presidency has thrown down the gauntlet to all parties by removing a lot of text, with initial reactions suggesting that this has caught some member countries out. The reaction of those parties to the challenge presented by these latest drafts will determine whether an agreement is achieved.

Eight issues in COP21, and where they're at

Even though the new text may not necessarily reflect the true state of negotiations, what are some of the areas where landings appear to have been achieved, and what are the remaining issues that must be resolved in the time available? Here is a quick overview:

  1. While limiting global temperature increase to less than 2 degrees above pre-industrial levels remains the long-term goal under the agreement, consistent with the framework convention, an option in the text provides for a new or additional goal of 1.5 degrees. If adopted, this would provide added impetus for more ambitious emissions reduction, particularly when the agreement provides for regular reviews and a global stocktake to measure performance. In the decision text, the IPCC is to prepare a report on the implications of a 1.5 degree goal, with that report to be delivered in 2018, in time for future reviews.
  2. Regular five-year review of parties' commitments appears to be a settled requirement, with the only outstanding issue being the timing of the first review. Options include 2020 or 2021, with parties' further commitments to represent progression beyond previous efforts, and a global stocktake to be initially undertaken by 2023/24 and every five years thereafter to inform future commitments.
  3. The ability of developing countries to contribute to mitigation and adaptation being expressed as dependent on support from developed countries (including financial support, technology transfer and capacity building), appears to be another agreed position, with the options concerned with the nature and extent of that support. A new mechanism is proposed to be established under the agreement to support sustainable development in developing countries.
  4. Parties are encouraged to develop long-term low emissions development strategies, to provide a broader context to the development of future commitments and to enable correlation between support and implementation of those strategies. This is in addition to the requirement for each party to regularly prepare a new INDC, and to implement them domestically.
  5. Agreement appears to have been reached on the manner and form in which information is provided by the parties under the Agreement. Information in any new INDC, or in reporting against performance, is to be provided in a consistent manner, and in a form determined by the conference to the parties to the agreement (CMA). The submitted information will also be subject to some form of technical expert review. This is intended to ensure clarity, transparency and understanding of that information but presumably also comparability. To the extent that developing countries lack capacity and resources to meet these higher levels of monitoring, reporting and verification, support will be available. The decision text establishes a Capacity Building Initiative for Transparency to build institutional and technical capacity both pre-2020 and post-2020 to support developing countries upon request in meeting enhanced transparency requirements. This will provide a degree of assurance to parties that each member is meeting their commitments.
  6. Loss and damage resulting from climate change appears to have remained within the existing framework of the Warsaw International Mechanism. Attempts by G77 to introduce a separate liability and compensation obligation on developed countries appear to have been stared down.
  7. The article in both the draft agreement and decision text concerning adaptation actions is by and large settled. The agreement commits all parties to building adaptive capacity and resilience to the effects of climate change utilising the Cancun Framework.
  8. Finance remains the section with the most bracketed text and options, although there is a general acknowledgement of the need for developed countries to provide new and additional finance to assist developing countries with mitigation and adaptation. What the quantum of that needs to be and the source of those funds remains to be resolved but the current commitment of US$100bn appears to be a floor.

The role of civil society

New to the decision text is an explicit acknowledgement of the role of civil society in meeting the challenges of climate change, with the decision providing for the continuation of the successful Lima-Paris Action Agenda by which business and sub-national jurisdictions could voluntarily commit to emissions reductions. The existing register of these voluntary commitments, the NAZCA, will continue and be supported by the appointment of two high-level champions to further encourage voluntary action by business.

Start date after 1 January 2020

If adopted by the COP, the agreement is to commence once a sufficient number of parties have ratified, signed or adopted the agreement. The current options in the text are 50 or 60 members, and there is bracketed text that obligations are not to commence before 1 January 2020. Even if such a date is to make it into the final text, the decision text allows parties to provisionally implement the agreement before it formally comes into force.

What we can expect in the next two days

Extensive further consultation and meetings are expected over the next 24-48 hours by country delegates to try and resolve remaining issues. Even if the agreement might lack sufficient ambition, the ambition of the French presidency cannot be doubted as it is committed to the deal being done before close of business on Friday, 11 December.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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