Non-state actors, states and international institutions

Environmental negotiations are perhaps above all distinguished by the plethora of interests encompassed by the sector. In part as we have seen above how this extensive array of interests finds itself reflected in the size of a significant number of delegations.

In the Paris session, over 1,000 NGOs, with over 6,000 delegates attended COP 21, representing views across the environmental spectrum, along with intergovernmental organisations and other international institutions, took part.

NGOs were incorporated into delegations, whilst others occupied varying status and influence outside that framework. Of particular note after the Durban session is the creation of different types of international institution led coalitions or groupings on climate initiatives, and, the corresponding intensification of corporate lobbying linked to new NGO coalitions. Examples include the UNEP initiative on promoting policy instruments to promote renewable energies and green economies in developing countries;19 UNDP link-up with the IEA in a multi-player grouping of national agencies,

NGOs and national regulatory research institutions, to lobby to promote energy efficiency in building construction20 and the Corporate Carbon Pricing Coalition.21 The latter, set up in 2012, comprised a coalition of states; subnational authorities, cities; and international institutions including the World Bank, to promote carbon trading systems. The Coalition was highly active on article 6 (discussed below) of the Paris agreement in various UN meetings such as the General Assembly High Level event on Climate, and in other fora.22

End run: Paris agreement

The end run of the Paris negotiations was marked by the introduction of the second revised text. However, final agreement still remained elusive in parts of the four key areas (differentiation; transparency; finance and assistance for the climatically vulnerable for loss and damage). Haggling over the text on differentiation centred on the financial provisions with the US, EU and other developed countries opposed by China, India, Malaysia, Saudi Arabia and emerging economies over draft provisions which would extend liabilities to emerging, commodity and other powers in what would become Article 8 of the Paris agreement23 Drafting options put forward included making provisions for other countries to offer financial support on a ‘complementary’ basis, or joining on a ‘voluntary’ basis.

Other issues continued over the time-scale options for shifts from fossil fuels to renewables. Competing options on transparency remained in the revised text, along with the drafting differences of provisions for reporting and verification. The COP presidency continued through 12 December with intensive bilateral discussions to reach agreements on detailed language in critical areas, which was eventually endorsed at the COP late on 12 December.

Main provisions of the Paris agreement

The Paris agreement is the first major comprehensive agreement which addresses climate change, creating an overall regime for dealing with emission and related climate changes issues. The agreement brings together within one instrument the climate obligations of developed and developing, unlike the more limited Kyoto protocol.

As such, the text is a delicate balance in its different sections between developed and other party - particularly developing, least developed and small island states - obligations and interests. The balance is reflected in framing the obligations in terms of shall, will and may. In other uses the requirements are drafted in a minimal recommendatory form such as ‘should take action’ or ‘are encouraged to’, as in Article 5 on actions with respect to forests; building socio economic resilience (Article 7(9) (e)) and technology transfer (Article 11(1)).

The text too is predicated upon the concept of ‘common but differentiated responsibilities’ - the standard doctrine championed by large emerging economies.

Paris framework

The Agreement is structured around three areas: central goals, national targets, adaptation/mitigation and implementation. Alongside the Agreement is the travaux of COP 21,24 containing details on the scope, decisions and recommendations relating to the particular provisions of the Paris agreement, which are directly cross-referenced in the agreement.25

Article 2 of the Paris agreement seeks to strengthening the global response to climate change by: measures holding the increase in global temperature rise; increasing the ability to adapt to adverse impacts and through financial flows directed to promoting low greenhouse gas emissions and ‘climate resilient development’. The article deals with one of the fundamental and ongoing issues and as such reflects the substantial divisions over the subject. As such there was no agreement on a target figure but holding the increase in global average temperature to ‘well below 2°C’. Moreover, the general indicative measures (Article 2(1)(b)) relating to adaptation and fostering resilience and development of low greenhouse gas emission, was qualified by the requirement ‘in a manner that does not threaten food production’, reflecting wide international agriculture and horticulture concerns.

Article 2(2) as a header article governing the overall agreement, is used to seek implementation based on ‘equity’ and the principle of ‘common but differentiated responsibilities’.

The implementation of national measures towards emission control or reduction is dealt with in Article 4. Each party is required (4(9)) to communication a nationally determined contribution every five years (I/CP. 21), recorded in an international register. Article 14 requires that parties are informed of the outcomes of the global stocktake.

With respect to mitigation, the concept of internationally transferred mitigation outcomes though international carbon trading and other similar schemes was particularly controversial. Prior to Paris the text was heavily bracketed in the draft Preamble and main body, reflecting the opposition to having provisions on market mechanisms which could be vehicles for trading carbon credits for polluters.

Lobbying for the concept, and inclusion in the draft and final texts was carried out by for example the EU, individual European states, Canada, Norway, and by the new Carbon Pricing Coalition, a multi-actor statecorporate organisation coalition, which includes Germany, France, Switzerland, Norway, Canada, Mexico. The idea of linking business more closely to the UN and climate negotiations had been advanced through the UNGA summit prior to Paris and the World Bank carbon pricing programme.

Article 6 in the Paris agreement provides for a mechanism ‘for internationally transferred mitigation’, carried out on a voluntary basis, which would be supervised by a body designated by the agreement. To increase the acceptability of the article, there is provision that a proportion of the proceeds is used to assist parties that are particularly vulnerable to meet the costs of adaptation.

Another area of interest in this article is the offset provision in Article 6(8) which puts the alternative case for integrated non-market approaches, rather than adaptation. Though further details are not provided in Article 6, in that it is unfinished, perhaps overlooked in the high-pressure process of reaching a final consolidated document. Article 6(9) simply states:

... a framework for non market approaches to sustainable development is hereby defined to promote the nonmarket approaches referred to in paragraph 8 (of Article 6).

The paragraph gives no details of the framework.

Article 7 of the agreement deals with the issue of adaptation, a further difficult area in the Paris negotiations, in view of the scale of international finance to meet the needs faced by vulnerable states to climate change and the limited capacity and options of other larger states.

The article is largely a set of acknowledgements of the need for and importance of adaptive capacity and resilience. Article 8 is more detailed on the specific area of international measures in response to loss and damage from, for example, extreme weather events, and, the role of sustainable development in reducing risk to adverse loss and damage.

Some sense of the division over adaptation is conveyed in two competing subparagraphs of article 7, which represent the divergent approaches to adaptation and capacity provision. Article 7(5) seeks to set adaptation in a national context:

(5) Extraordinary sessions of the Conference of the Parties shall be held at such other times as may be deemed necessary by the Conference, or at the written request of any Party, provided that, within six months of the request being communicated to the Parties by the secretariat, it is supported by at least one third of the Parties.

The subparagraph is a summary of the concerns and ideology of the least developed, developing and vulnerable island states - that adaptation should be nationally driven; take into account the particular characteristics of a country, its communities, people and traditions and, implicitly, that independence and sovereignty is externally respected.

These ideas on adaptation are restated in an additional article on capacity building (Article 11(2)).

It is interesting that the above country driven criteria are then countered (Article 7(7)) with general provisions for Parties which reflect the external cooperation model of assistance for adaptation (‘strengthen their cooperation on enhancing action; strengthening institutional arrangements; strengthening scientific knowledge on climate’, ‘in a manner that informs climate services and supports decision making’ (Article 7(7) (d) ).

These then are classically summarised in Article 7(7) (d) as: ‘assisting developing country' parties in identifying effective adaptation practices, adaptation needs, priorities ... in a manner consistent with encouraging good practices’.

There are in addition further specific provisions with respect to technology transfer (Article 10) areas of cooperation relating averting and minimising loss and damage from both extreme weather and slow onset events (Article 8). Article 8(4) contains an indicative list of areas of possible cooperation, including early warning systems; emergency preparedness; and promotion of resilience in communities. Climate risk insurance is added as a new area of contemporary diplomacy.28

On administration, Article 7 provides that each Party should submit and update periodically an adaptation communication, which shall be recorded, similar to the nationally determined contribution, and kept by the Secretariat in a public registry (Article 7(11)).

The financial provisions underpinning the Paris agreement are based upon establishing the responsibility with developed countries (Article 9). ‘Developed country Parties shall provide financial resources to assist developing country' Parties with respect to both mitigation and adaptation in continuation of their existing obligations under the Convention’.

Lesser voluntary obligations are set out for: ‘other Parties are encouraged to provide or continue to provide such support voluntarily’.

The drafting of the first part of Article 9 with respect to developed countries is unclear in terms of new obligations under the Paris agreement or arising from new situations or institutions created by' the Paris agreement. The responsibility' of developed country' parties is, however reinforced in the cross reference to the transparency provisions (Article 13(9)), which require information to be submitted on financial, technological and capacity building support under Articles 9, 10 and 11.

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