By Meenakshi Raman and Chee Yoke Ling, Third World Network
Sustainable Development Goal 13 acknowledges that the United Nations Framework Convention on Climate Change (UNFCCC) is the primary intergovernmental forum for negotiating the global response to climate change.
As one of the three “Rio Conventions” that were forged in parallel with the Rio Declaration on Environment and Development and Agenda 21 in 1992, the UNFCCC gives legal form to the principle of equity and common but differentiated responsibilities (CBDR). Its objective is ambitious:
“(the) stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system (…) within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”1
Climate science today paints a more frightening picture than in 1992, when the world’s political leaders agreed on changes to production and consumption patterns, recognized the different levels of development among countries, and accepted the need for industrialized countries to take the lead in domestic climate action and the provision of means of implementation to developing countries in light of their historical responsibility and capabilities. Accordingly, common but differentiated responsibilities and respective capabilities (CBDR-RC) is the first principle in the UNFCCC (Article 3).
The Paris Agreement2 adopted at the UNFCCC Conference of Parties (COP 21) in December 2015 was the outcome of major battles on multiple issues. Between developed and developing countries CBDR was a key issue of contention as it was in the negotiations on the 2030 Agenda on Sustainable Development and the Sustainable Development Goals (SDGs).
The Paris Agreement operationalizes equity and CBDR
The Agreement can be regarded as a legal manifestation of the 2030 Agenda’s principles of universality, equity and CBDR and is largely consistent with the SDGs.
The Agreement was opened for signature by Parties at the UN headquarters in New York in April 2016 and will enter into force upon ratification by at least 55 Parties to the Convention, accounting for at least an estimated 55 percent of total global greenhouse gas (GHG) emissions. It is expected to come into effect post-2020.
Article 2.1 enhances implementation of the Convention, strengthening the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty. Parties agreed that this would include:
“(a) Holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;
(b) Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; and
(c) Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.”
A key issue throughout the negotiations was whether and how the principle of CBDR-RC will be operationalized. While developed countries challenged the principle itself, insisting that the Agreement reflect the “evolving economic and emission trends” of countries in the post-2020 timeframe, developing countries consistently argued that given the historical emissions of developed countries, they should continue to take the lead in emission reductions and in helping developing countries with the provision of finance, technology transfer and capacity-building as agreed under the UNFCCC.
At the 2014 COP meeting in Lima, where CBDR-RC was also hotly contested, Parties committed to reaching an ambitious agreement in Paris that reflects the principle of CBDR-RC, in light of different national circumstances. This was the ‘landing-zone’ arrived at with regard to the CBDR principle, following the China-United States joint statement on emissions that accordingly found its way into the Paris Agreement.
This gain for developing countries is captured in Article 2.2 that states, “This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC), in the light of different national circumstances.”3 It also means that developed countries can invoke their own national circumstances.
Throughout the four years of work leading to the Paris Agreement, the purpose itself remained contentious. Developing countries were adamant that it must not “rewrite, replace or reinterpret the Convention.” The G77 and China, including its sub-groups especially the Like-minded Developing Countries and the African Group, consistently stressed that the purpose of the Agreement is to enhance implementation of the Convention on mitigation, adaptation, finance, technology transfer, capacity building, and transparency of action and support.
Developed countries, on the other hand, appeared to focus more on the ‘objective’ of the Agreement, which was perceived by developing countries as a mitigation-centric approach linked only to the temperature goal, with an attempt to weaken the link to the provisions and obligations of developed countries under the Convention, especially on the means of implementation (finance, technology transfer and capacity building). Thus the reference to “enhancing the implementation of the Convention” is seen as another gain for developing countries.
Although limiting temperature rise to well below 2°C above pre-industrial levels was clear, reference to efforts to limit the increase to 1.5°C is also seen as a victory for developing countries, especially Small Island Developing States (SIDS), Least Developed Countries (LDCs), Africa and the countries of the Bolivarian Alliance for the Peoples of Our America (ALBA).
Developing countries also wanted the focus to be on adaptation and finance and to ensure that the global response is in “the context of sustainable development and efforts to eradicate poverty.”
Nationally Determined Contributions: “Bottom-up” climate actions
The Agreement obligates all Parties “to undertake and communicate ambitious efforts” through intended nationally determined contributions (INDCs). These efforts “will represent a progression over time, while recognizing the need to support developing country Parties for the effective implementation of this Agreement” (Article 3). This is fundamentally different from a science-based “top-down” approach where an aggregate of GHG emissions reduction is multilaterally determined, to be shared among developed countries.
Developed countries had sought to make the Paris Agreement mitigation-centric and to expand legally binding mitigation commitments to developing countries, especially emerging economies. Beginning at the 2009 COP in Copenhagen, the USA led the shift from a top-down approach to bottom-up nationally determined actions. The Paris Agreement locks that in through Article 3 on INDCs. However, developing countries succeeded in making the scope of INDCs comprehensive; thus Article 3 explicitly includes mitigation, adaptation, finance, technology development and transfer, capacity building, and a transparency framework for action and support.
For the first time, developing countries have an international obligation to take mitigation action, albeit in a nationally determined way, and with means of implementation provided by developed countries. By contrast, the mitigation commitment of developed countries is diluted compared to the UNFCCC and the Kyoto Protocol. This came from a last minute replacement of ‘shall’ with ‘should’ regarding mitigation by developed countries. At the ‘back room’ insistence of the USA, the COP21 Presidency allowed this under the guise of a technical correction during the final plenary.
The recognition in Article 4 on mitigation, that peaking of greenhouse gases (GHGs) will take longer for developing countries, implicitly acknowledges the principle of CBDR. However, the aim is to achieve a balance in the second half of this century between emissions by sources and removals by sinks of GHGs; this is to be on the basis of equity and in the context of sustainable development and efforts to eradicate poverty. The notion of balance between emissions by sources and removals by sinks of GHGs is not defined.
It is likely that various Parties will suggest ‘net zero emissions’, given that a balance refers to the total net (of human caused) emissions to the atmosphere being zero. If this is how ‘balance’ is to be understood, it would mean that by the second half of the century, any ongoing emissions must be balanced by an equivalent level of sequestration. As the capacity of forests and other ecosystems to sequester carbon is finite, this effectively means bringing emissions as close to zero as possible. Sectors that cannot be reduced to zero emissions such as agriculture, will need to compensate through sequestration.4
Of concern is whether this notion of balance in emissions and removals by sinks opens the door for a form of geo-engineering known as carbon dioxide removal, if large-scale monoculture plantations or bioenergy crops with carbon-capture and storage are used to remove significant volumes of carbon from the atmosphere.5 This will indeed be a matter of much debate in the coming years.
Another battle in the climate negotiations was over equal treatment between mitigation and adaptation. Developing countries had been pushing for a long-term goal or vision on adaptation to ensure that there is parity between adaptation and mitigation and to avoid having only a mitigation-centric goal linked to the temperature goal.
The result is Article 7.1 whereby Parties agreed to “establish the global goal on adaptation of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change, with a view to contributing to sustainable development and ensuring an adequate adaptation response in the context of the temperature goal referred to in Article 2.”
Loss and Damage
One major victory for developing countries is the anchoring of ‘loss and damage’ in a free-standing Article 8, distinct from ‘adaptation’. (The term refers broadly to the entire range of damage and permanent loss associated with climate change impacts in developing countries that can no longer be avoided through mitigation or adaptation.)
This hard-fought achievement came at a price when a deal was made behind closed doors in the final hours prior to the release of the draft agreement, namely the clause in paragraph 51 of the COP decision stating that Parties agree “that Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.”
According to several experts, the exclusionary clause in paragraph 51 does not preclude financial resources from being allocated through the Financial Mechanism of the Convention and the Agreement for developing countries to seek funds to address the adverse impacts related to loss and damage.
Finance and Technology
Prior to the adoption of the final Agreement, the thrust of the developed countries’ position on the issue of finance was to increase the scope of countries (to include developing countries) who should be ‘donors’ of climate finance by proposing such terms as ‘all Parties in a position to do so’ should provide financial resources or that the mobilization of climate finance is a ‘shared effort’ of all Parties.
In the final Agreement, however, developed countries are not absolved from their financial commitments under the UNFCCC, and “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.” In addition, “Parties are encouraged to provide or continue to provide such support voluntarily.”
The inclusion of the figure of US$ 100 billion per year as a floor did not make it into the Agreement because developed countries, in particular the USA, were against any quantified target on the scale of resources in the Paris Agreement. Instead paragraph 53 of the accompanying COP21 decision states that:
“(…) developed countries intend to continue their existing collective mobilization goal through 2025 in the context of meaningful mitigation actions and transparency on implementation; prior to 2025 the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement shall set a new collective quantified goal from a floor of USD 100 billion per year, taking into account the needs and priorities of developing countries.” This goes further than SDG Target 13.a in terms of setting a future floor of over US$ 100 billion annually, SDG Target 13.a states that developed country parties to the UNFCCC are to “implement” their commitment to mobilize jointly US$ 100 billion annually by 2020.
Developed countries also sought to “integrate climate considerations” into “international development assistance.” This was strongly resisted by developing countries and the Agreement includes no mention of international development assistance.
Which developing countries can be recipients of finance under the Convention was another contested issue. Developed countries tried to limit this to those “who are particularly vulnerable to the adverse impacts of climate change”, and are “capacity-constrained developing countries, least developed countries (LDCs), Small Island Developing States (SIDs) and Africa”. Subsequently, developing countries failed to agree on the need to explicitly mention not only Africa but also other developing country regions, so in the end Article 9(4) refers only to LDCs and SIDS—as does Target 13.b of SDG 13.6
In the technology negotiations, developing countries submitted various proposals to enhance technology development and transfer. Developed countries opposed these and only wanted a very weak outcome relating to ‘technology cooperation’.
The real value for developing countries in the final Article 10 is the establishment of the technology framework to provide guidance to the UNFCCC Technology Mechanism to promote and facilitate enhanced action on technology development and transfer. One of the aspects for further work is “the assessment of technologies that are ready for transfer” in the decision accompanying the Agreement. It is however silent on how such technologies will be effectively transferred to developing countries.
The long-standing battle over intellectual property rights (IPR) continued, with strong opposition by developed countries, in particular the USA, to even mentioning the word ‘IPRs’. Their opposition can be explained in part by a letter from six major US industry lobbies7 dated 18 February 2016 to US Senator Orrin Hatch, Chairman of the Senate Committee on Finance, which stated:
“(…) In Paris, technical and IP experts from different parts of the Administration worked together to secure a final UNFCCC text that does not mention IP and thus removes uncertainty that could have discouraged continued investments by U.S. companies in clean technology.
“Significant challenges to IP still remain in the Paris Agreement’s implementation and subsequent negotiations – especially those related to the technology development and transfer chapter. Nonetheless, we are certain that the successful UNFCCC outcome on IP in Paris could not have been achieved without close interagency cooperation and collaboration among the U.S. government’s technical and IP experts in dialogue with business. This allowed the U.S. delegation to develop and defend consistent negotiating positions (…).”8
Developing countries started the Paris talks with some clear objectives and principles. While some aspects of these were diluted, their red lines were protected, though they did not get some key demands such as clearer targets on finance or a reference to IPRs as a barrier to technology transfer. Some important developing country gains are:
- The Paris Agreement is not mitigation-centric as desired by developed countries, although in some aspects mitigation does get pride of place;
- Developing countries to a significant extent successfully defended the Convention and stopped the plans of developed countries to drastically re-write the Convention and negate its fundamental principles;
- Differentiation between developed and developing countries was retained in the main, although weakened in some areas;
- The principle of equity and CBDR is stated in a clause in Article 2 onthe purpose of the Agreement, and was operationalized in some key provisions;
- Sustainable development and poverty eradication provide the context of actions by developing countries in some key areas;
- Developed countries taking the lead in mitigation and finance is in the Agreement;
- Although the temperature goal is to limit temperature rise to well below 2°C from pre-industrial levels, the reference to pursuing efforts to limit temperature rise to below 1.5°C is significant.9
It is true that the Paris Agreement also means that big pressures will be put on developing countries, and especially the emerging economies, to do much more on their climate actions, including mitigation. But these enhanced actions need to be taken, given the crisis of climate change that very seriously affect developing countries themselves.
However, the Agreement fails to provide actions that fulfil the 2°C pathway, let alone 1.5°C. The emissions gap is very large between what countries in aggregate should do and what they pledged to do in their INDCs up to 2030 (see box) leading many commentators to condemn the Paris COP21 as a failure.
However another perspective is that COP21 is only a start, and the Agreement represents a multilateral agreement to enhance individual and collective actions to face the climate catastrophe. A real failure would have been a collapse of the Paris negotiations, Copenhagen-style, or an outcome that only favours the developed countries with the rewriting of the Convention.
The Agreement, from this perspective, has laid the foundation on which future actions can be motivated and incentivized, a baseline from which more ambitious actions must flow. The Agreement includes mechanisms, such as a global stocktaking in 2023,10 that can be used to encourage countries to raise their ambition level. International cooperation, however inadequate and flawed, remains intact from which more cooperation can flow in future.
The bottom-up approach enabling each country to choose its “nationally determined contribution” with presently very weak or even no compliance, was the only possible outcome, given that many governments (including the USA) were generally not ready or willing or able to undertake legally binding targets.
It can be expected that developed countries will continue to pressure developing countries, especially emerging economies, and also try to shift or avoid their own obligations. Developing countries will need to invoke the overall context of what will make a low carbon pathway a reality – means of implementation plus adaptation, loss and damage, all in the context of sustainable development and poverty eradication. They must also remain firm and united to ensure that multilateralism shapes climate actions in the negotiations and other processes ahead.
- 1UNFCCC, Article 2.
- 2For a detailed analysis of the Paris Agreement see http://twn.my/title2/climate/doc/Meenabriefingpaper.pdf.
- 3The first UNFCCC Principle (Article 3) states: “The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.”
- 4Cf. Dooley (2016)
- 5Cf. ibid.
- 6Article 9(4): “The provision of scaled-up financial resources should aim to achieve a balance between adaptation and mitigation, taking into account country-driven strategies, and the priorities and needs of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change and have significant capacity constraints, such as the least developed countries and small island developing States, considering the need for public and grant-based resources for adaptation.”
- 7Biotechnology Innovation Organization, National Association of Manufacturers, National Foreign Trade Council, Pharmaceutical Research and Manufacturers of America, U.S. Chamber of Commerce, United States Council for International Business.
- 8Cf. http://keionline.org/sites/default/files/Multi-Industry-Letter-on-UNHLP-2.18.16.pdf.
- 9This 1.5 degree C target was called for by Small Island States, LDCs, Africa and ALBA countries.
- 10This will be followed by one every five years unless otherwise decided by the Parties of the Paris Agreement.
Climate Equity Reference Project (2015): Fair Shares: A Civil Society Equity Review of INDCs. Berkeley, CA/Stockholm.
Dooley, Kate (2016): What does the Paris climate agreement mean for forests and forest peoples’ rights? Bruxelles: FERN. www.fern.org/node/6009
IPCC (2014): Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. Geneva.
IPCC (2013): Summary for Policymakers: Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change.