UK: COP 20 – Lima 2014: Déjà Vu On The Road To Paris


The 20th Conference of the Parties (the COP) to the United Nations Framework Convention on Climate Change (the UNFCCC) and the 10th Conference serving as the Meeting of the Parties to the Kyoto Protocol (the CMP) concluded in Lima, Peru, on Sunday 14 December 2014 with a prevailing sense of déjà vu.

This Lima COP was the penultimate COP meeting before the Paris meeting in November 2015, which is the deadline for reaching a new International Climate Change Agreement (the 2015 Agreement).1 As such, just like in the COPs leading up to the last big attempt for a new international agreement at Copenhagen in 2009, there was a need to make significant progress in Lima to ensure the mountain to climb in Paris does not become too steep.

It is fair to say that notwithstanding a number of significant and positive developments leading up to the Lima COP – the UN Climate Finance Summit in New York, the recent U.S./China joint agreement on climate change, the achievement of the targeted capitalisation of U.S.$10 billion for the Green Climate Fund (the GCF) – the amount of progress achieved in Lima was disappointing.

Does this increase the risk of the Paris COP, like Copenhagen, collapsing under the weight of its own expectation? The answer is that it could, if the next six months are not put to good use and if negotiators continue to play brinkmanship on every possible issue in the various meetings and events set for the next few months (see the 'Next Steps' below). That said, much has changed since Copenhagen in 2009 and those differences may help make the 2015 Agreement in Paris more achievable despite the limited progress in Lima. We consider some of these changes in the context of the Lima COP below.

From Copenhagen to Paris

The road from Copenhagen to Paris is now littered with international climate statements such as the "Copenhagen Accords", the "Cancun Agreements", the "Durban Platform for Enhanced Action", the "Doha Climate Gateway", the "Warsaw Outcomes", and the latest to join the list is the "Lima Call for Climate Action" (which includes the draft negotiating text for the 2015 Agreement annexed thereto (the Negotiating Text)2. Although commentators have called these documents "international agreements", they are better thought of as declaratory "stepping stones" inching towards a potential 2015 Agreement. Such stepping stones are not new; even before Copenhagen there were similar agreements such as the Bali Road Map, which, as we all know, did not ultimately deliver.

However, one of the key aspects differentiating the previous attempt in Copenhagen at an international agreement, to the current hopes for the 2015 Agreement, is the active participation in combating climate change by all country parties, and not just by the few OECD and other developed countries. Unlike in 2009, the debate on capping greenhouse gases has moved on from "why should this commitment go beyond developed countries alone?" to each party having "intended nationally determined contributions towards achieving the objective" of stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. However, for reasons discussed below, this level may not actually be enough to prevent temperature rise exceeding 2 degrees Celsius.

If Copenhagen (and Kyoto before that), aspired towards a global legally binding agreement in cutting greenhouse gas emissions, then the aim of the 2015 Agreement is to have every party offer up what it can in a less prescriptive form. Everyone therefore gets to do its part in a "bottom-up" approach, which contrasts significantly with the approach in Copenhagen. Although having to corral 192 countries to make individualised pledges on a contentious subject such as climate change is a challenging proposition, if successful this is ultimately, in the longer term, more likely to lead to an effective outcome than the previous "developed versus developing country" approach. A successful 2015 Agreement must have countries such China, India and Brazil carrying a share of the actions towards achieving the aim of reducing greenhouse gases, along with the US and other developed countries. The lofty titles of the above listed climate statements, are collective reflections of this progressive shift away from the "top-down", rigid and legally binding form pursued in Copenhagen.


Building on the pledging system developed in the Warsaw COP, the Lima COP enshrines the latest component of that shift by refining those emission reduction pledges or – to use the latest COP jargon – intended nationally determined contributions (INDCs). In Lima, the battle lines were drawn on the meaning, nature and scope of such INDCs and, to add to that debate, whether the INDCs should further recognise and differentiate between the respective responsibilities of the richer parties and poorer parties who are more dependent on cheaper fossil fuels for their future growth and further development. This led to the importation into the Lima Call for Climate Action, of the existing controversial Kyoto concept of common but differentiated responsibilities and respective capabilities (CBDR), together with a new qualifying phrase – "in light of different national circumstances" – to support that differentiation. While some hail this as a significant victory for some parties such as India, it should be noted that it nearly exactly copies the words of the landmark agreement in November between the United States and China that states similarly that targets should "reflect the principle of common but differentiated responsibilities and respective capabilities in light of different national circumstances." Thus we have to ask, is this a victory at all, or simply moving along the path always intended by the United States?

Although a variety of approaches to differentiation are currently advocated by parties, one approach backed by Brazil3 may ultimately be the one that is likely to be adopted as a compromise approach at the Paris COP in November 2015. The Brazilian "concentric differentiation" approach envisages developed countries in the middle with absolute economy-wide emissions targets; better-off developing countries in the next circle with other types of economy-wide targets; and least developed countries in the outer circle with non-economy-wide actions. All countries would move to the center over time. The debate on differentiation also flowed into the negotiations on adaptation to climate change and climate finance.

As for the INDCs, agreement was reached in Lima on the following:

  • Parties providing INDCs "may" (not "must") include quantifiable information regarding the reference point of emissions reductions, time frames and/or periods for implementation, the scope and coverage, assumptions etc.
  • There is no formal review mechanism for INDCs to be assessed against the party's obligations (reinforcing their voluntary nature).
  • The INDCs provided must be beyond what the parties are currently undertaking (i.e. INDCs should be new and higher than current pledges).
  • The INDCs should be submitted by Q1 2015, but only by those parties "ready to do so", and the INDCs submitted will be "without prejudice" as to the INDCs ultimately contained in the 2015 Agreement.
  • The INDCs submitted as of 1 October 2015 will be compiled by the UNFCCC secretariat in a synthesis report on their aggregate effect by 1 November 2015, just in time for the start of the Paris meeting on 30 November 2015.

The challenge of having a less prescriptive and more open-ended process for developing INDCs is that it will make it harder to work out their relative impact towards achievement of the 2 degree Celsius target. It remains uncertain whether the INDCs should apply beyond mitigation actions or extend to adaptation and finance too. It also makes it easier for parties to provide their own interpretation on the information requirement, leading to the potential for uncertainty of the combined effect of the respective INDCs until the UNFCCC publishes the synthesis report in the immediacy of the Paris meeting. The fact that the pledges are "indicative" implies that they are not going to be binding on the parties and are therefore, "soft" targets.

Other developments

Separate to INDCs, a number of other items discussed but not necessarily progressed in Lima include:

  • The legal form of the 2015 Agreement – the 2015 Agreement could take one of three legal forms,4 each having its own implications for the extent to which the 2015 Agreement will be binding on the parties (i.e. whether all or only some aspects of it are binding), and the procedure for enacting the 2015 Agreement (i.e. via majority voting on a binding amendment of the Convention, or voluntary ratification of a protocol to the Convention, for instance). Although the Lima Call for Climate Action did not include a decision on this issue, it is clear that the Negotiating Text must be circulated six months in advance of the Paris COP, if the 2015 Agreement is to have any legal force, whatever its ultimate form.
  • Climate Finance and the Green Climate Fund (the GCF) – the Lima Call for Climate Action did not include any deadlines by which developed countries must illustrate how they plan to achieve the target of $100 billion worth of contributions to the GCF by 2020, an obligation to provide evidence of potential sources for the funds to be pledged or an indication of the political viability of such pledges.
  • The role of carbon markets – these took a knock in that the Lima Call for Climate Action does not include a single reference to carbon markets. Still, the Negotiating Text retains a number of references to carbon markets,5 meaning that these are not completely off the table for Paris. Also, talks on Nationally Appropriate Mitigation Actions (the NAMAs), the framework for various approaches (the FVA) and a new market mechanism (the NMM)6 were suspended until the Subsidiary Body for Implementation (the SBI) meeting in June 2015, as disagreement arose on whether market-related issues fall within the mandate of the Ad Hoc Working Group for the Durban Platform for Enhanced Action (the ADP).
  • Clean Development Mechanism (the CDM) – the review of the CDM's modalities has been postponed until the SBI's meeting in June 2015. The lack of progress reflects a number of factors, including the uncertainty of the role of CDM in a 2015 Agreement. The depressed prices and lack of demand for CERs does not invite any urgency for the CDM reform agenda.
  • Reducing emissions from deforestation and degradation (REDD+) – negotiations at the Lima COP in relation to REDD+ focused predominantly on safeguards7 but failed to bear fruit due to concerns expressed by parties who are more likely to be the beneficiaries of such safeguards (e.g. Brazil and other rainforest-rich countries), that such safeguards should only be discussed after certain fundamental elements, such as compliance and enforcement mechanisms, are agreed upon.

Next Steps

Between now and the Paris COP in November 2015, there are several key milestones that will continue to shape the 2015 Agreement. These are set out in the timeline below.


The limited success of the Lima COP must be viewed in the context of the road to Paris. There were breakthroughs in further overcoming the traditional Kyoto "developed versus developing country" divide through the willingness expressed by all parties to set out their respective INDCs (albeit voluntarily and only if possible within the timeframe). Currently, almost every section of the Negotiating Text has three or four alternative forms proposed. These options will need to be whittled down in advance of June 2015 when a shorter version of the Negotiating Text would have to be presented to the COP. A number of meetings between now and December 2015 will be the key to further reducing the 43-page Negotiating Text down to a more manageable 20-25.

However, expectations of what a meaningful 2015 Agreement will look like may ultimately turn on any particular stakeholder's expectations for Paris. The trend of the 2015 Agreement is clear; this process will not deliver the 2 degrees Celsius target. Some parties to the process, such as the small island states, will no doubt have grave concerns in this regard, but may be able to take small measures of comfort from the "loss and damage" concept introduced in the Warsaw COP. Furthermore, the 2015 Agreement may not be a formal legally binding treaty and a party's compliance will potentially lack international scrutiny and oversight. However, given the history of climate change negotiations, this outcome is more realistic. In any event, it may be questioned how much more chance of success the theoretically "binding" nature of an agreement really creates. Enforcement of international agreements is extremely difficult in practice, whereas political will, and the desire to avoid international naming and shaming of recalcitrant states are likely to be equally if not more effective drivers of success.

The 2015 Agreement is likely to lead to a more fragmented and regional carbon market. Unlike the Kyoto Protocol, which created a common accounting framework and trading units for international carbon credits which were recognised by all of the parties to the Kyoto Protocol, it is likely that the 2015 Agreement will have a plethora of such units which won't be easily convertible across the various local markets in which they will be created. This localisation of carbon markets will make it more challenging to set a single international price for the cost of carbon abatement. Logically and over time, it is more likely that bi-lateral or multilateral arrangements between parties to the 2015 Agreement will lead to such fragmented markets being joined up, partially through economic necessity but also to overcome the limitations of the negotiating parties to the 2015 Agreement.

Even a watered-down 2015 Agreement will be hard fought, as the arguments in Lima have hinted, given that this would be the first truly global – albeit differentiated – attempt to address the challenge of climate change. As to whether the 2015 Agreement is ultimately reached, this will depend on the willingness of the main greenhouse gas emitting countries – the U.S., China, India and the EU – to use the limited time given to them constructively until August 20158 to reach a deal, in principle, on the key components of the 2015 Agreement.


1 This deadline was imposed by the decision adopted at the Durban COP in 2012.

2 The Negotiating Text is available as an Annex to the Lima Call for Climate Action at

3 Views of Brazil on the elements of the new agreement under the Convention applicable to all parties (6 November 2014), available at

4 (a) A fully-fledged amendment to the UNFCCC pursuant to Article 15 of the same; (b) an Annex pursuant to Article 16; or (c) a protocol pursuant to Article 17.

5 In excess of 20 references to markets remain, although many such references appear in square bracketed options of the Negotiating Text.

6 NAMAs refer to a similar mechanism to the CDM, whereby participating countries can take their own respective approaches toward mitigation (e.g. through a national project-based crediting system) that would be recognised on an international level. The FVA refers to an umbrella policy framework bringing together mechanisms for facilitating emission reductions, and within this, the NMM refers to the way in which these mechanisms can ultimately be consolidated in practice (most likely in the form of a pan-regional or global emissions trading scheme).

7 REDD+ refers to the policy framework which provides financial incentives to developing countries to achieve emission reductions through remedial action taken to reduce rates of deforestation and forest degradation. Safeguards in the context of REDD+ refer to measures designed to protect against potential social and environmental harms that could result from the implementation of REDD+ activities (for example, a scenario whereby indigenous people are driven off their land to pave the way for a emission reduction-achieving forestry project).

8 Although not formally scheduled, it is almost inevitable that an additional ADP meeting in August will be needed.

Client Alert 2014-346

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.