This is the second in a series of bulletins authored by Doug Tingey who is in Copenhagen attending the climate change negotiations from December 7th to 20th. Doug is Counsel to Borden Ladner Gervais LLP (BLG) in Calgary and is a member of the firm's Corporate Commercial Practice Group and Climate Change Focus Group. Doug advises on business law aspects of climate change mitigation to clients carrying on business around the world. BLG considers the outcome of COP 15 to be critical for many Canadian businesses and is providing these bulletins as a method of keeping clients and friends of the firm informed during the conference.
The first week of COP 15/CMP 5 ended with a proper flurry of activity on Saturday December 12, 2009 and the process has now effectively been handed to the ministers representing each party. Progress was truly mixed with the key issue before the Parties leading up to the arrival of the ministerial level delegates continuing to be the legal form of the outcome of the meetings and the context in which the negotiating texts will be negotiated. Until late on Thursday the fight had continued to be over whether a "contact group" should be formed to facilitate the development of negotiating texts and to move drafts along for consideration at the ministerial and eventually the high level meetings involving a growing number of heads of state.
It remains likely that there will be a string of COP decisions that are prefaced with various high level declarations of intention on outstanding issues. These will be set in a negotiating framework cast as a "political" document that will lead sometime during 2010 to a binding document, either in the form of an Annex to the convention, or a new protocol. Much of the heat generated during open and closed discussions during the first week concerned the legal nature and relationship of that new document to the Kyoto Protocol.
By Friday contact groups and informal consultations (the latter almost invariably being closed to non-Party delegates) had convened (sometimes more than once) on a range of issues, including a shared vision, mitigation, adaptation, finance and technology under the AWG-LCA, Annex 1 emission reductions under the AWG-KP, and various topics under the Subsidiary Body for Scientific and Technological Advice (SBSTA) and the Subsidiary Body for Implementation (SBI). Importantly, the chairs of the two AWGs released drafts that contained numerous place holders for elaboration and further text to be imported from the various informal drafting and negotiating nodes. Unless the mandates of the two AWGs are extended before the end of the COP/CMP, both AWGs will end their work within the next couple of days.
Of the key developing countries, India has been as clear as one can get with regards to its concerns over the chairs' drafts. The Indian minister of the environment is quoted by the press as having said that "I have made it absolutely clear that 3, 4, 8 are red lines as far as India is concerned. We have problems not only with the drafting but also with the idea." The references are to the negotiating draft prepared by the chair of the AWG-LCA. Article 3 of the draft fails to distinguish between Annex 1 and non-Annex 1 and calls on all parties to "collectively" reduce the emission cuts by 50, 85 or 90 per cent by 2050. Article 4 calls on all parties to cooperate to "achieve peaking of global and national emissions as soon as possible" though it is recognised that developing country peaking will be longer. Article 8 calls for a comprehensive review of the implementation of mitigation obligations with the first round beginning 2016 where that review is informed by the next (fifth) assessment report of the Intergovernmental Panel on Climate Change.
The ministers will have a few days (perhaps as few as four) to move the documents forward for final consideration at the high level meetings scheduled for the end of week two. The fact that more than 100 heads of state will attend the last few days of the meetings is important evidence of the significance of the outcome. This degree of high level participation in the proceedings of the convention and the protocol is unprecedented.
Canada's policies continue to be criticised as being a drag on the negotiations especially by the nongovernmental organization (NGO) community. Canada leads the Climate Action Network International fossil of the day awards table and is on track to win back to back fossil of the year awards. The underlying concern reflected in the granting of these awards is the unwillingness of Canada to agree to let alone lead in the adoption of an agreement that is "fair, ambitious and binding".
The big issues remain – climate finance supporting mitigation and adaptation, binding mitigation commitments of the developed countries and appropriate actions of developing countries, continued recognition of "common but differentiated responsibilities" and historical emissions, whether commitments should be nationally appropriate and targets be linked to perceived national circumstances (e.g. Canada's insistence on use of a 2006 baseline) and accounting for forestry practices.
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