Key Points:
There will be considerable work and little time to bridge the remaining differences if the Paris agreement is to meet the expectation of members for a robust and ambitious agreement.
Over the past week, the working group charged with responsibility for fashioning the world's next climate change agreement, the Ad Hoc Working Group on the Durban Platform (ADP), has sought to navigate many of the difficult issues and geopolitical positions of members to the convention. That work ceased on Saturday when the ADP handed over the draft text to the Conference of the Parties presided over by the French Environment Minister, Laurent Fabius. It will be the responsibility of the COP and the Ministers now arriving in Paris, including Australia's Foreign Minister Julie Bishop, to finalise the agreement in the second and final week of the conference.
Although the negotiations in the previous week had been considered difficult, there was cautious optimism on Saturday when the revised agreement text and draft decision were delivered to the COP. The draft agreement was about half the length of when negotiations commenced, albeit that the document was accompanied by a "reflection note" comprising comments provided by member countries on the revised text which had not been incorporated. At the opening plenary of the COP on Monday, in addition to observing that the text had become shorter, the President noted that it now contained fewer options and the solutions to the remaining issues appeared clearer.
However, the high-level segment of the COP on Monday contained a number of interventions by representatives of developing countries which sounded a warning that an agreement was not a foregone conclusion. Those interventions included statements to the effect that the proposed agreement must honour the language of the original framework convention and its principles which includes the principles of common but differentiated responsibility having regard to respective capacities. These countries, including the G77 and China group, made clear that they were not interested in renegotiating or rewriting that agreement, or reinterpreting it in a manner that imposed increased obligations on them to mitigate emissions without adequate financial and technological support from "Annex 1" countries. This would suggest that the INDCs submitted by developing countries in this grouping were conditional on the provision of climate finance, among other things.
The provision of adequate finance both in the pre- and post-2020 scenario would appear critical to the outcome of the negotiations. The developed countries are not necessarily against this, but they also see the opportunity and capacity for the larger developing countries to contribute to the pool of funds to drive abatement and adaptation in less developed countries. As it is the most contentious of the issues to resolve the Paris agreement, observers present at COP 21 expect that finance could cause a walkout mid-week, or the speedy finalisation of the agreement if a compromise can be brokered. To this end, the French Presidency has made clear that the COP approval processes require the agreement to be finalised by Thursday, which leaves little time to bring the threads together.
One issue on which there appears to be a growing consensus is on the inclusion of a new global warming target of not more than 1.5 degrees Celsius. The call from the small island states to increase the level of ambition has captured the support of the vast majority of member states in the COP, although the fact that current INDCs have been assessed at delivering an outcome of 2.7 degrees Celsius would suggest that 1.5 degrees, like the current 2 degree target, is aspirational.
That the current INDCs will not in themselves be legally binding targets shows the importance of regular (and early) reviews of each country's commitment, as is proposed by the requirement for five yearly review cycles, with the first review to occur in 2020. It also underscores the need for robust monitoring, reporting and verification of performance against the INDCs. Although it's no guarantee, only in this way will there be a mechanism in the Paris agreement which could allow mitigation ambition to meet the requirements of the science.
The French presidency has stated that in order for an agreement to be approved by the COP by the last day of the conference, it must be finalised by Thursday. Consequently there will be considerable work and little time to bridge the remaining differences if the Paris agreement is to meet the expectation of members for a robust and ambitious agreement.
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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.
