Transcript Negotiation Indices

The 2015 Paris Agreement
1. General Architecture
Benito Müller
Director ecbi, Head of Fellowship Programme
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european capacity building initiative
initiative européenne de renforcement des capacités
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for sustained capacity building in support of international climate change negotiations
pour un renforcement durable des capacités en appui aux négociations internationales
sur les changements climatiques
1. General Architecture
The general architecture of the 2015 Agreement can be
characterised with reference to certain categories of
architectural elements, instruments and countries. Items 1.2 to
1.4 are a rough attempt to characterise these categories.
1.1. “Top Down” vs “Bottom Up”
1.2. Substantive Categories (of Architectural Elements)
1.3. Legal Categories (of Architectural Elements and
Instruments)
1.4. Country Categories (for differentiation)
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The purpose of this agenda item is to discuss how the general
architecture of the 2015 Agreement ensures that it is durable,
equitable, and effective.
1.1. “Top Down” vs “Bottom Up”
The distinction between “top-down” and “bottom up” can be
interpreted as referring to level of discretion of individual Parties
concerning category membership, the issue being to what extent
are Parties free to make these choices and reverse them? The level
of discretion can be constrained by
1. by substantive prescriptions of what options one is eligible to
choose from, or
2. by legal prescriptions as to the need to have one’s choice
recognized by others.
Why restrict the discretion to choose?
• Equity
• Effectiveness (ambition)
• Trust
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It’s all about the discretion to choose!
1.2. “Top Down” vs “Bottom Up”
Substantive Prescriptions on What one can choose from
Levels of Prescriptiveness
• No choice
• Only some options
• All options
“Bottom-up” (most discretion, lowest prescriptiveness)
Why would one wish such substantive prescriptions?
To increase the equity and adequacy of the regime (see Section 1.4)
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“Top-down” (least discretion, highest prescriptiveness)
1.2. “Top Down” vs “Bottom Up”
Legal Prescriptions on who is involved in choosing
Levels of Prescriptiveness
• International consensus + National ratification (Treaty)
• International consensus (COP decision/agreement)
• National legal consensus (Legislative decision)
• National political consensus (Executive decision)
“Bottom-up” (most discretion, lowest prescriptiveness)
Why would one wish such legal prescriptions?
To increase the trustworthiness of contributions/promises (see Section 1.3)
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“Top-down” (least discretion, highest prescriptiveness)
1.2. “Top Down” vs “Bottom Up”
Legal Prescriptiveness
Substantive Prescriptiveness
Kyoto
Protocol
Kyoto
Protocol
Substantive Prescriptiveness
Anything
Goes
Anything
Goes
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Legal Prescriptiveness
“Multi-dimensional choices”
1.2. Substantive Categories (of Architectural Elements)
a. Basic Categories

Intended Nationally Determined
Contributions (INDCs) and

Other, in particular, ‘regulatory’
elements (REs)






Mitigation,
Adaptation,
Finance,
Technology Transfer,
Capacity Building
Loss & Damage
c. Categories of Regulatory
Elements


Accounting rules
Anchoring Provisions
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b. (Potential) Substantive
Categories of INDCs
1.3. Legal Categories (of Elements and Instruments)
“Legal strength”
Internationally binding

Domestically binding

Politically binding

Non-binding/aspirational

b. Categories of Instruments

Treaty/Protocol

Annex/Appendix/Schedule

COP Decision

Inf. Document

Domestic law

Executive order/regulations

Data Base
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a. Categories of Legal Bindingness
1.3. Legal Categories (of Elements and Instruments)
Main Agreement
Annexes
COP Decisions
Data Bases
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The basic legal structure of the Paris Package
(“protocol, another legal instrument or an agreed outcome with legal force
under the Convention applicable to all Parties”)
1.3. Legal Categories (of Elements and Instruments)
Main Agreement
Annexes
COP Decisions
Data Bases
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The basic legal structure of the Paris Package
(“protocol, another legal instrument or an agreed outcome with legal force
under the Convention applicable to all Parties”)
1.3. Legal Categories (of Elements and Instruments)
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The basic legal structure of the Paris Package
(“protocol, another legal instrument or an agreed outcome with legal force
under the Convention applicable to all Parties”)
Top-down
Most
prescriptive
Legal Prescriptiveness
Protocol
Annexes
COP Decisions
Data Bases
Least
prescriptive
Bottom-up
Levels of Legal Bindingness
and
Degrees of Legal Prescriptiveness
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Excursion 1:
Levels of Legal Bindingness and Degrees of Discretion
Public announcement
•
Evidence state’s intention to be bound
•
“The United States will not use nuclear
weapons against any non-nuclear–
weapon State party to the Treaty on the
Non-Proliferation of Nuclear
Weapons..., except in the case of an
attack on the United States, its territories
or armed forces, or its allies...”
(Declarations by the US Secretary of
State in 1978)
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•
It explores the legal feasibility of having an annex – say ‘Annex Q’ for QELRO –
to a Treaty/Protocol (which as such would have to be ratified/enter into force)
where Parties could inscribe targets which would automatically become legally
binding.
Thus there would be no need for some additional amendment ratification process
(as in the case of the Kyoto Protocol), although possibly with the precondition of
a COP decision expressing consent to ensure environmental integrity.
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This ecbi Legal Note considers the legal options for creating a space for QELROs
in the Paris Agreement.
1.2. “Top Down” vs “Bottom Up”
QELROs in the Paris Protocol
Q.2
Kyoto
Q.1
Protocol
“Legal strength”
Annex Q.1
Annex Q.2
Legal Prescriptiveness
COP Decision +
N’l ratification
Internationally binding contributions
≠
National ratification
COP Decision + UD
Annex Q.3
Unilateral
Declaration (UD)
L-Prescriptiveness
Protocol
Q.3
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Internationally binding
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End of Excursion 1
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Thank you!
International law: the International Law
Association’s (ILA) Legal Principles
related to climate change
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Excursion 2:
ILA Legal principles related to climate change
About
• Draft articles and commentaries
– blueprint for an international
treaty?
• Current and emerging law
applicable between states
http://www.ila-hq.org/en/committees/index.cfm/cid/1029
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• Committee on legal principles
Principles:
• Sustainable development (draft
Art.3)
• Equity (draft Art.4)
• CBDRRC (draft Art.5)
• Special circumstances and
vulnerability (draft Art.6)
• Prevention (draft Art.7A)
• Precaution (draft Art.7B)
• International cooperation (draft
Art.8)
• Good faith (draft Art.9)
• Inter-relationship (draft Art.10)
ILA Legal principles related to climate change
Some findings & consequences
Principle of international cooperation
requires states to transfer scientific
knowledge, develop international law
and fill existing legal gaps
•
The totality of the global
atmosphere must be managed as
one in accordance with
internationally agreed rules.
•
Atmosphere is a “common natural
resource” and State sovereignty over
atmospheric space must be exercised
in the interest of humankind – for the
benefit of present and future
generations
•
These rules need to reflect other
important objectives, such as the
realisation of human rights and
poverty eradication.
•
Thus, increasing GHG emissions in
developing countries remain - to
some extent - justified.
•
Protection of the climate system must
be balanced with economic and social
development
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•
ILA Legal principles related to climate change
Due diligence obligation
Principle of prevention applicable to climate change – due diligence to avoid, minimize
and reduce likelihood of harm through climate change!
•
Obligation to act where (a) reasonable foreseeability of damage falling short of conclusive
scientific proof and (b) a threat of serious or irreversible damage
•
Need for ongoing assessment of measures in light of new scientific knowledge
•
Procedural obligations: environmental impact assessment, notification and consultation
•
Differentiated responsibilities, due to differing (Art.5.3):
- Historical, current and future contributions to climate change
- Technological, financial and infrastructural capabilities
- National circumstances (and constraints)
•
States’ commitments – fall along a spectrum – and shall evolve over time as contributions,
capabilities, economic fortunes and national circumstances evolve (Art.5.4)
•
Responsibility for GHG remains crucial component
•
Developed countries have an obligation to provide resources and technologies
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•
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End of Excursion 2
1.4. Country Categories (for differentiation)
Background Material
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1.4. Country Categories (for differentiation)
Is there a need for differentiation?
Central to a regime’s fairness is its ability to differentiate between
different actors and to tailor commitments to responsibilities and
capacities.
Thus far, this has primarily taken the form of a clear distinction between
the commitments required of Annex I (developed country) and nonAnnex I (developing country) Parties.
“developed” v. “developing” (= not-developed)
Annex I v. non-Annex I
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Todd Stern:
“it is difficult to construct an effective agreement unless countries of very different capabilities
– for example, emerging or wealthy non-Annex I economies compared to Least Developed
Countries – can be expected to act in different ways.”
1.4. Country Categories (for differentiation)
5.1. Creating new categories of countries?
5.2. Facilitating movement between categories of countries?
5.2.1
Triggering graduation based on ‘objective’ criteria
5.2.2. Triggering graduation through membership in another ‘club’
5.3. Encouraging self-election into categories of countries?
5.4. Encouraging differentiation of commitments and actions across countries?
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5. Exploring various options for differentiation in a regime applicable to all
1.4. Country Categories (for differentiation)
5.1. Creating new categories of countries?
NB: Categories = Lists/Annexes
“Strict Definition” of categories
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The UNFCCC provides for the possibility of amendments (Article
15) and specifically for new annexes (Article 16). Politically,
however, there is likely to be resistance to defining any further
country lists, beyond those defined by the category of Annex I
and Annex II. Any amendments to this distinction are likely to be
perceived by some countries as a fundamental alteration of the
structure of the UNFCCC, and its balance of responsibilities, and
as therefore undermining it (Brazil, 2009; China, 2012; India,
2012), rather than viewing it as working within and enhancing the
UNFCCC.
1.4. Country Categories (for differentiation)
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There are voices from developing countries that do
envisage new (sub-) categories of countries
1.4. Country Categories (for differentiation)
5.2. Facilitating movement between categories of countries?
Triggering graduation based on ‘objective’ criteria
5.2.2. Triggering graduation through membership in another ‘club’
Note: “movement” ≠ “graduation”
In more general terms: Definition of Country Category membership
•
Based on ‘objective criteria’
•
Based on other membership(s). Fact: Annex I = OECD (1990) +EITs
5.3. Encouraging self-election into categories of countries?
Top-down: 5.2.
Country Category A
Country Category B
Substantive
Prescriptions
Bottom-up: 5.3
INDC.1
INDC.2
INDC.3
INDC.4
INDC.5
INDC.6
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5.2.1
1.4. Country Categories (for differentiation)
5. Exploring various options for differentiation
(Top-down) Definition based on ‘objective’ criteria
(Top-down) Definition through membership in another ‘club’
(Bottom-up) Self-election into categories of countries
(Bottom-up) Differentiation of commitments and actions
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• It is highly unlikely that, in the absence of any (top-down)
substantive prescription the resulting regime would be
equitable
1.4. Country Categories (for differentiation)
“There is a continuum of actions, rather than any strict categorization.”
INDC.1
INDC.2
INDC.1-countries
INDC.3
INDC.4
INDC.5
INDC.6
INDC.3-4-5-countries
INDC.2-countries
INDC.5-6-countries
Substantive
Prescriptions
Bottom-up
Ex post
categories
Note: This
“However, without a clear context of annexes benchmarked to particular
expectations, or an alternative reference framework that requires some countries to
do more, there is a danger that this incremental approach will be ineffective.”
• Moreover, it is again highly unlikely that the resulting regime would satisfy the
demands of intra-generational distributive justice (equity)
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5.4. Encouraging differentiation of commitments and actions across
countries?
1.4. Country Categories (for differentiation)
(Top-down) Definition based on ‘objective’ criteria
(Top-down) Definition through membership in another ‘club’
(Bottom-up) Self-election into categories of countries
(Bottom-up) Differentiation of commitments and actions
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5. Exploring various options for differentiation
1.4. Country Categories (for differentiation)
Top-down option 1: External club membership
Annex I Mk 2 = OECD (2014) +EIT (5.2.2.) is not going to resolve the developed country
objections to the use of non-Annex I as defining ‘developing countries’
GDP/cap
$90,000
$80,000
$70,000
$60,000
$50,000
$40,000
=
=
$30,000
$20,000
$10,000
$-
Chile
Mexico
Korea
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•
1.4. Country Categories (for differentiation)
(Top-down) Definition based on ‘objective’ criteria
(Top-down) Definition through membership in another ‘club’
(Bottom-up) Self-election into categories of countries
(Bottom-up) Differentiation of commitments and actions
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5. Exploring various options for differentiation
1.4. Country Categories (for differentiation)
Top-down option 2: Annex P (‘Paris’) defined by objective criteria
$80,000
Luxemburg
non-Annex P
Annex P
Qatar
$70,000
$60,000
Kuwait
Singapore
$50,000
UAE
$40,000
$30,000
Saudi Arabia
$20,000
$10,000
India
China
Brazil
Mexico
$-
Assume: Annex P membership is triggered by a GDP/cap threshold of $6000
•
Having China in the same category as themselves, this would satisfy US position
•
But it likely to pose some serious problems with G77 and China, if Annex P is meant to
be an operationalization of “developing country” (regardless of the threshold level).
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$90,000
G77 Membership
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Excursion 3:
A Tale of Two “Clubs”: G77+China and OECD + EU
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G77 membership history
1.
3.
4.
5.
6.
7.
8.
9.
•
•
•
For G77, there are certain Exclusion Trigger Clubs, like the OECD or the EU, membership
of which is not seen to be compatible with G77 membership.
It is likely, given the political polarisation of the UNFCCC, that “being a developed country”
– however specified – would be regarded as incompatible with G77+China membership.
Thus any “hard” operationalization of the category of developing countries for UNFCCC – by
an Annex P or however else -- which would contain G77 and China members is highly
unlikely to be acceptable to these countries.
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2.
New Zealand signed the original "Joint Declaration of the Developing Countries" in October 1963, but pulled out of the
group before the formation of the G-77 in 1964 (it joined the OECD in 1973).
Mexico was a founding member, but left the G-77 after joining the OECD in 1994. It had presided over the group in 1973–
1974, 1983–1984; however, it is still a member of G-24.
South Korea was a founding member, but left the G-77 after joining the OECD in 1996.
South Vietnam was a founding member, but left the Group in 1975 when the North Vietnamese captured Saigon.
Yugoslavia was a founding member; by the late 1990s it was still listed on the membership list, but it was noted that it
"cannot participate in the activities of G-77." It was removed from the list in late 2003. It had presided over the group in
1985–1986. Bosnia and Herzegovina is the only part of former Yugoslavia that is currently in G-77.
Cyprus was a founding member, but was no longer listed on the official G77 membership list after its accession to the EU
in 2004.
Malta was admitted to the G-77in 1976, but was no longer listed on the official G77 membership list after its accession to
the EU in 2004.
Palau joined the G-77 in 2002, but withdrew in 2004, having decided that it could best pursue its environmental interests
through the Alliance of Small Island States.
Romania was admitted to the G-77 in 1976, but was no longer listed on the official membership list after its accession to
the EU in 2007.
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End of Excursion 3
1.4. Country Categories (for differentiation)
The Conundrum
(Top-down) Definition based on ‘objective’ criteria
(Top-down) Definition through membership in another ‘club’
(Bottom-up) Self-election into categories of countries
(Bottom-up) Differentiation of commitments and actions
What to do?
“There is emerging common ground amongst Parties that a hybrid
architecture combining nationally determined contributions or
commitments with top-down elements such as rules on transparency and
accounting, as well as an assessment/consultative process will likely be
the architecture of the 2015 agreement.”[Rajamani (2014)]
Problem: An assessment/consultative process cannot work without some
substantive prescriptions
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5. Exploring various options for differentiation
1.4. Country Categories (for differentiation)
“Top-down-light Model”:
• Use terminology such as “(less capable) developed country”, “(capable)
developing country”, “appropriate national circumstances” –without exante operationalization through annexes – to express expectations about
who is meant to do what.
• Provide the architectural space (such as “Annex Q”) for everyone to do as
much as they possibly can (to achieve ambition).
• Use political tools to “urge” countries to really do their best in their choice
of the spaces they wish to engage through in the Agreement
 Bottom-up selection of country category politically guided by objective
criteria
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Abandon “hard” operationalization/strict definitions in favour of
“soft” operationalization/lose definitions in giving top-down
guidance as to who should be doing what.
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Thank you!