Tag Archives: UNFCCC

Strategies of ratification and the Paris Agreement

Ahead of the high-level signing ceremony for the Paris Agreement, which opens on April 22 for signature in New  York, attention has been turning to progress in terms of ratification and entry into force of the Agreement. A little bit of fuss (see also here) has also been kicked up by a memo from think-tank Third World Network, which urges developing countries to ‘wait this year’ and not ‘rush into signing’ the Paris Agreement.

Their memo presents a series of arguments for doing so, namely in terms of maintaining ‘political leverage’ in interim negotiations prior to entry into force, where outstanding issues from the Paris conference are still to be agreed:

“Not signing now keeps the pressure up on developed countries to deliver on their promises and to leverage the outcomes and positions that are vital for developing countries in meeting their obligations under the PA.”

It’s an interesting and important point, evoking memories of the long-delayed entry into force of the Kyoto Protocol, which after US withdrawal, depended on Russian ratification, which was not finalised until November 2004, three years after the conclusion of the Marrakesh Accords and seven after the Protocol itself. Russia’s delayed ratification had a fairly straightforward strategic logic, namely in its linkage to European support for Russia’s World Trade Organisation membership. Indeed, adoption of the Marrakesh Accords was itself dependent on other industrialised countries naming their price for ratification, as the Earth Negotiations Bulletin recounts:

“In the knowledge that their participation was essential for entry into force of the Protocol, the Russian Federation, Japan, Australia, and Canada used this leverage – both collectively and individually – to drive down the “price” of ratification. Playing the ratification card on a number of occasions, they sought to weaken the compliance system, lower the eligibility requirements for mechanisms, undermine opportunities for public participation and transparency, and minimize requirements for providing information on sinks.”

Accordingly, non-ratification as a tool to secure bargaining leverage should be a fairly unsurprising situation.

After Paris, there is still a rather long list of ‘to-dos’, as this list from the UNFCCC Secretariat details. In addition, there are a series of ongoing processes under the regular Convention institutions, as well as the parallel progress of the Green Climate Fund’s capitalisation and disbursement processes. Some of the work resulting from 1/CP.21 has been delegated to a new sub-group of the UNFCCC, the Ad Hoc Working Group on the Paris Agreement (APA), and the TWN memo notes the selection of officers (and the system of doing so) at the upcoming May UNFCCC session as one of its first tasks, which is always politically contentious. The TWN memo also goes on to cite specific pending forthcoming deadlines on loss and damage, technology transfer and the provision of finance by developed countries.

As a result, an interesting guidepost might be to look at the pattern and speed of ratifications experienced with the Kyoto Protocol. The following figure divides the period since 1997 into four phases: from the signing ceremony to COP7, where the Marrakesh Accords were completed; from the Marrakesh accords to Russian ratification in November 2004; from Russian ratification to the first meeting of Parties to the Kyoto Protocol in November 2005; and since CMP1.

Source data: unfccc.int

Source data: unfccc.int

This division in the sequencing of KP ratifications leads to a few observations, which may be of relevance today:

  • A sizeable number of countries ratified the KP prior to Marrakesh (43) – but twice this number (83) signed the KP during the year from 1998-1999 that it was open for signature in New York. Signatures are a signal of intent, but ratifications are what matter. The 55th ratification (one of two thresholds to bring the KP into force) did not take place until mid-2002, and signatories to the KP included four countries that were to cause a lot of later grief to the KP’s fortunes: the United States, Canada, Russia and Australia. (Incidentally, the first countries to ratify the KP were small, vulnerable ones (Fiji, Antigua and Barbuda, and Tuvalu), much like the first ones to ratify the PA – Fiji, Palau and the Marshall islands).
  • Most ratifications came between 2001 and 2004, i.e. after the Marrakesh Accords were concluded (and of these, most were made in 2002, immediately following Marrakesh). This makes broad sense, because Marrakesh was the point at which many uncertain issues were finally resolved, especially surrounding the KP’s accounting rules, calculations for land-use, and the Clean Development Mechanism. Now, of the numerous elements outstanding from Paris, those related to the new market mechanisms and transparency stand out as being the most contentious that will take more than one negotiating session to resolve. I find it hard to imagine that in particular, those countries that have indicated a use for international market mechanisms in their INDC/NDC pledges will ratify the PA prior to gaining substantial clarity over these new mechanisms.
  • A sizeable number of countries (30) ratified in the one year between the Russian ratification and CMP1/COP11 in Montreal (of which noteworthy ratifications included Saudi Arabia, Venezuela, the UAE, Kuwait and Iran). The obvious explanation is that the particular timing of this was in order to participate fully in the CMP as Parties to the Protocol, which they would not have been able to do so otherwise. I would expect that the TWN ‘wait and see’ advice on signing the Paris Agreement would change in the (what I think is unlikely) event of the Paris Agreement entering into force within the next year, in order to be full Parties to the PA when its first Meeting of Parties convenes, because any bargaining leverage that ensues from withheld ratification would no longer exist.

Of course, the past is not the future, and the purpose of the Paris Agreement is, after all, to establish a new political framework different to that of the past and enable action with far greater urgency than hitherto seen. In recent days, the US and China jointly announced their intention to sign the PA at the April 22 signing ceremony, followed by India (although its minister was quoted as saying ‘ratify’). All of the above of what I’ve said may be proved wrong very shortly.

But while the signing ceremony matters as a political event, for a collective high-level reaffirmation of the commitments made in Paris and to maintain the sense of momentum, I can’t help but think that it is a bit of a red herring. What ultimately matters for entry into force of the Paris Agreement is ratifications, not signatures. Rather than getting all excited about its entry into force (even this year), the slow progress in ratifying the KP’s Doha Amendment – now approaching four years since adoption – should also provide a cautionary experience. Ratification is not just a procedural exercise, and the TWN memo usefully highlights the substantive hurdles that are still there to be negotiated in fully elaborating the Paris climate architecture.

This post was re-posted on 7 April 2016 at ClimateHome, and on 12 April 2016 in Chinese at ChinaDialogue

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French diplomacy, the Paris Agreement, and the structural power of the COP President

“He got a decent deal and everyone said they liked him”, was ClimateHome’s pithy assessment of French Foreign Minister Laurent Fabius, the president of the COP21 climate summit in Paris. Other reports concurred, praising France’s successful management of the final days and hours of the summit to bring COP21 to a close with the adoption of the Paris Agreement.

“Mr Fabius and the formidable French diplomatic machine steered the conference to a successful conclusion”, said the FT, while others highlighted the personal investment of time through the many visits that Fabius had made to China, India and Saudi Arabia to build trust and confidence. Laurence Tubiana, France’s ambassador and envoy for climate change appointed by Fabius to steer the French diplomatic effort, also received a name check, as did France’s network of foreign missions spread throughout the world and their public outreach in the year leading up to COP21.

This due attention to the role of the French chairmanship and presidency of the conference, however, highlights an interesting and curious feature of this UNFCCC intergovernmental negotiating process, where the conference host holds a privileged and pivotal political position in directing the final outcome of the meeting. (This probably seems utterly self-evident and unremarkable to others who follow the process – but which I think is reason to step back for a moment). 

COP21 President Laurent Fabius brings down his green gavel. Photo via 'COP Paris' flickr, public domain.

COP21 President Laurent Fabius brings down his green gavel. Photo via flickr.com/photos/cop21/, public domain.

The authority to propose
In a previous post I wrote about how it is not parties who ultimately ‘hold the pen’ in actually drafting and writing the final outcomes, but the chair. At the annual COP meetings where the most contentious issues are finalised, this task is handed over to the conference host, who is then responsible for producing proposals that serve as final compromises acceptable to all, presented as a package.

The ‘authority to propose’ that the COP President possesses is a distinct form of power – agenda-setting power, to set the terms of the debate. The COP President has the discretion to propose and experiment with the methods of work that influence the character and content of discussions – such as the in-session indabas at COP21, tasking small spin-off groups, or appointing facilitators; or larger scheduling decisions, notably such as front-loading the COP21 Leader’s Event for Paris, as opposed to the previous back-end practice that puts it in sync with the normal high-level ministerial segment. While all parties have, of course, the ability to make proposals at any time, the COP President is endowed with a special legitimacy to do so.

It is, in short, a role of considerable structural importance in understanding the way in which the UNFCCC process delivers its outcomes to govern intergovernmental action on climate change. It is from the COP President where judgements about which pronounced ‘red lines’ are the ones that really matter to induce agreement, where the political effort to broker, cajole (and even coerce) acceptance of an agreement is made, and where the all-important decision on when to bring the final gavel down, and declare a consensus, is made.

None of the three iterations of the draft Paris Agreement presented by the French during the final week were ‘put on the screen’ for a line-by-line resolution of brackets and options. Instead, after comments aired and further revisions suggested by parties, returned to the black box of the French presidency to make the judgement about what to change, and presented afresh for further rinse-and-repeating.

This method of work is, for better or worse, the current social practice, part and parcel of the negotiating culture of the UNFCCC process. Indeed, the intervention of the COP President in making that compromise proposal is anticipated at the outset, leaving countries often unwilling to budge from their positions in the ‘technical’ preparatory work. Unlike many other travelling multilateral conferences that journey beyond the seats of their secretariats, the COP Presidency is anything but a ceremonial role, requiring a considerable political investment by the host country.

A “Proposal by the President”

 

Deep pockets
And yet, at the same time, this pivotal political role is one for which the first criteria is a logistical one: whether that country can comfortably host a conference of 10,000+ attendees (as in ‘normal’ recent years), or more like 30,000+ for marquee years such as 2015. The UNFCCC secretariat estimates the cost of hosting a COP meeting at €35-150 million, which is entirely borne by the host country. France’s provisional budget for COP21 was €187m, which will have surely further increased with additional security measures after the November 13 attacks. Peru, the host of the COP20 meeting in Lima, needed a €5m contribution from the EU to host the meeting.

This logistical prerequisite rules out a vast number of countries from assuming the political leadership role of the COP President – certainly, at a minimum, no least developed country and most small island states. The result is that that moderately deep pockets, probably of at least being a middle-income country, are required to host the COP in order to be able to exercise that political, agenda-setting discretion on what kind of agreement to propose. There is a quite profound inequality of opportunity going on here.

From working group chair to COP President
It is worth dwelling on this misfit between logistical capability and political opportunity for a couple of reasons. The first is that this is not a element of the UNFCCC process that has always been around, but part of its evolution at some point in the past 15 years of negotiations. In reflecting on the Paris Agreement’s significance, it is notable that in the agreement of its predecessor, the 1997 Kyoto Protocol, the Japanese hosts of the conference were broadly absent from the cut-and-thrust final phase of negotiations. Instead, the Ad Hoc Working Group on the Berlin Mandate was chaired throughout its entire 1995-1997 lifespan by Raul Estrada-Oyuela of Argentina, and whose judgement and nerve in gavelling through agreement of key areas of contention receives regular mention in the academic literature

Similarly, the Framework Convention on Climate Change itself was agreed at the final meeting of the Intergovernmental Negotiating Committee in May 1992, such that the document was closed in advance of the Rio Earth Summit itself. The INC had been presided over throughout only by Jean Ripert of France, with no conference ‘host’ to turn to, as the INC, had been generally hosted at various UN conference hubs.

By contrast, after handing over their working document mid-way through COP21 that they had shepherded through four-and-a-half negotiating meetings in 2015, the two co-chairs of the Durban Platform AWG, Ahmed Djoghlaf and Dan Reifsnyder, the final pair in the merry-go-round of ADP co-chairs, were largely absent from the podium and public eye.

At some point in the past 15 years, there has been a distinct transfer of authority from the working group chairman to the COP President.

Intergovernmental arrangements
The second is that this dual-role of both logistical host and political broker is up for discussion in the next couple of years, recognising the intensive demands of hosting the COP. Under the jargon-banner of ‘intergovernmental arrangements’, a slow-burning SBI discussion on the organisation of the COP that has been going for the past few years will now look to be more intensively addressed, following the shift into an ‘implementation’ phase of work as opposed to full-blown political negotiations culminating in the Paris Agreement.

(This segment of discussions is also looking at when the COP President is elected, a procedure normally undertaken at the beginning of the COP. This election means, however, that the incoming COP President actually has no formal role in the meetings preceding the COP – as in all of 2015 up to the beginning of COP21 for France – when a lot of the political expectations and potential areas of compromise are actually being socialised).

One of the more interesting possibilities being mooted (another idea is a shift to biennial rather than annual COPs) is to divorce the hosting responsibilities from the political position of the COP presidency. This would see COPs being rotated between host countries and the UNFCCC’s conference facilities in Bonn, Germany – which would allow for a country to take on the role of the COP President without the commensurate logistical demands. (see para.38-44 of this SBI42 document). Could one of the ‘particularly vulnerable’ small countries thus find themselves holding the pen and being responsible for the gavel, hitherto an impossibility?

(In fact, this has happened twice before, inadvertently – COP2 was supposed to be hosted by Uruguay (21/CP.1), but it later withdrew and Zimbabwe served as the president for COP2, which was convened in Geneva; Jordan initially offered to host COP5 in 1999, but also later withdrew (see para.12 of the SBI10 report), and Poland served as the president for COP5, which was convened in Bonn).

The ADP is dead, long live the APA
In the meantime, until a decision is made, the travelling COP continues, on to Marrakesh in November 2016, and the Asia-Pacific the following year. The Ad Hoc Working Group on the Durban Platform will now be replaced by the Ad Hoc Working Group on the Paris Agreement, in all likelihood with a protracted argument over chairing arrangements similar to that experienced by the ADP at its first session in June 2012. These chairs will guide further tricky details that still need to be agreed on (set out in 1/CP.21) to be able to implement the Paris Agreement when it enters into force. The real hotseat, however, to broker agreement and maintain momentum on climate action, will continue to be that of the COP Presidency. And to take on that role, first, host the COP.

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The Durban Platform’s procedural innovation – the ‘Chairs’ Informal Reflections’

A new year in the intergovernmental UN climate negotiating process begins soon, following last November’s Warsaw conference with the first session of the Durban Platform working group (ADP) in early March. In this post, I want to offer an observation about a small, but politically and procedurally interesting development in the ADP process – the emergence of the co-chairs’ ‘informal reflections’ on the progress of talks.

It has now become customary for the ADP co-chairs to produce “informal reflections” following each negotiating meeting. These comments have come to serve as a sort of stock-take of recent developments and highlight key areas to be addressed in the coming sessions, across the two workstreams (the 2015 agreement and pre-2020 action) of the Durban Platform. Surprisingly (at least to me), their emergence in the negotiating process has not received much attention, which I will try and highlight here.

The Warsaw ADP ‘dumping ground’
The first and most immediate reason for the importance of these informal reflections is highlighted in the effort to conclude the ADP negotiations at the COP19 Warsaw conference. While one of the stumbling blocks to get over the finishing line was the trade-off between mitigation ‘contributions’ and ‘commitments‘ in the 2015 agreement, a second area that was in dispute in the ADP’s final hours, to which less attention has been subsequently devoted, was a list annexed to the draft conclusions, titled ‘Non-exhaustive list of areas for further reflection’.

This annex effectively listed the main topics to be included in the 2015 agreement and sub-issues needing to be further elaborated in the future: institutional arrangements, differentiation, commitments, mitigation, adaptation, finance, and so on. For instance, the bullet point on adaptation read: “Adaptation: exploring a global goal; ways of strengthening the implementation of national adaptation plans; linking national and global efforts”.

The annex had first emerged in the first draft decision produced by the co-chairs earlier in the week, when it had been titled ‘Indicative elements of the 2015 agreement’ as part of the draft decision (not conclusions). By the fifth draft of the ADP decision, produced on the final night, it had been revised and moved to the conclusions and re-titled as above. Nonetheless, objections were still raised in the interventions that began in the resumed ADP plenary (now lunchtime of the Saturday after the conference was due to close).

First, India commented that the contents of the annex had not been discussed “as elaborately as we would have liked”, and that in their current form that “disturb the balance that we are trying to strike in the decision text”. India thus suggested, however, that the annex be taken out of the conclusions – and that the co-chairs could  “probably capture not only these [the contents of the annex], but all aspects of our discussions, including divergent views, in a reflection note from your side.”

The next intervention, from China, similarly emphasised that the annex included elements that had not yet been fully negotiated and that the list was “firstly, not balanced, secondly, very selective, and thirdly, maybe misleading”. China then added that “We’re not calling for the elements, or the list of areas for further reflection to [be put] into the trash can, but positively recommend [that] you capture [this] in your reflection note after the session. Certainly we will come back to the reflection note…”

A passage that made me sit up, however, was the following response from one of the co-chairs, Kishan Kumarsingh (see approx. 41:00 on the webcast recording here):

“…while the co-chairs are flattered by the many suggestions that should be put into the reflection note…the chairs’ reflection note remains the chairs’ reflection note. It is not for negotiation nor consideration by parties. It remains under the full responsibility of the chairs, and belongs to the co-chairs, but we thank you for the kind suggestion in any event.”

This exchange raises a number of points, but the first is that the co-chairs’ informal reflections seemed to provide a sort of ‘dumping ground’ for ideas and elements in a draft decision that were not fully negotiated, and hence still contentious, but perhaps not completely so – a place to relocate them without completely discarding them. This may be an interesting way of how to handle issues that countries are not in complete disagreement about, but which they have not yet had the time to negotiate over in a line-by-line manner. At Warsaw, once countries agreed to strike the annex, the rest of the draft conclusions proceeded to be be adopted (see the final ADP session report here).

‘Let the co-chairs include these in their reflections, but take it out of the text at hand’ may be a new halfway house in the negotiating process.

Non-negotiable common ground

The second interesting aspect of these informal reflections, however, is the comment cited above about the non-negotiability of the reflections: “It remains under the full responsibility of the chairs”. Something that is “not for negotiation” is a striking comment amid the constant refrain of ‘party-driven process’. Again, this appears to mark a sort of halfway house that is neither just the submissions and views of members, nor draft or agreed language itself, but an attempt to set out in a somewhat impartial way what they see as the common ground. It appears to be a novel way of attempting to capture ideas that do not yet have full agreement, but may be on the way to doing so, and perhaps to avoid losing momentum between negotiating meetings and a reversion to previously articulated positions that a long, drawn-out negotiating process may be prone to.

One earlier note, published after the first Bonn ADP session in 2013, echoes this more directly, when it included two-and-a-half pages of ‘perceived areas of common ground’ as an annex to the reflections proper. This initiative received some pushback from countries at the second Bonn ADP session in 2013, but it nonetheless points to the broad potential of these informal reflections to capture progress in ways short of formal negotiating language itself. The fact that they are not negotiated may be cause for reticence in using them too closely during negotiations themselves, but this same fact may also be a bit of a guiding hand for countries who may be nervous about putting forward a proposal themselves.

The role of the (co-)chairs

The third interesting aspect of these informal reflections, thus, is more generally about the entrepreneurial role of the co-chairs in this UNFCCC negotiating process in their novel creation of this new procedural device. This new method was introduced by the first set of ADP co-chairs in 2012, and then seamlessly continued by their successors such that they are no longer, in this brief span of time, seen as exceptional.

As Joanna Depledge pointed out a few years ago (£), chairpersons in the UNFCCC process already have considerable discretion in the management of conference proceedings. Chairs, as a result of their election, are endowed with a certain degree of authority, even while their leadership is expected to be impartial. They can “act as a third party, and intervene in the negotiating dynamics among parties to cajole, persuade, pressurize, arbitrate, intermediate, or otherwise broker deals”.

In practical terms, they make judgements about the balance of the text, whether in take-it-or-leave-it scenarios or as a result of mandates given by states to synthesize and consolidate proposals into a single text (as in the ‘consolidated negotiating text’ prepared by chair Estrada-Oyuela in the Kyoto Protocol negotiations). During the AWG-LCA negotiations in 2010, a series of ‘indicative questions’ on each issue area was issued by the chair in order to prompt a more focused method of discussion, questions that are perhaps not too dissimilar from the ones being raised by the ADP co-chairs now.

These new ADP reflection notes very much emerge out of this lineage, and they also reflect the even greater roles of the co-chairs in the ADP process (they are also distinct from the ‘scenario notes’ which are typically issued ahead of negotiating meetings that lay out the proposed way of organising the work of the session, see the one issued for the March 2014 ADP session). The UNFCCC website now features a ‘co-chairs’ corner‘ section alongside ADP documentation, perhaps another indication of their status as independent third parties within the negotiating process.

When the first such note was issued after the Bangkok 2012 ADP session, it was caveated at the outset: “This note has been prepared under our own responsibility, and is without prejudice to future negotiations. It is not a basis of negotiations, but made available to Parties to help them in their preparations for Doha”. That first note was also issued without any formal document symbols or formatting. In 2014, a few such informal notes later, there is no need for such caveats about the status of the document – instead, as the co-chair’s comments quoted above suggest, the status of their independence is more assertively put.

The irony may be that this development takes place alongside discussions on the organisation of the UNFCCC negotiations, raised by Russia in wake of the Doha COP, a key element of which seeks to scrutinize the conduct and roles of the chair and presiding officers, as well as the assisting secretariat. Formally titled ‘decision-making in the UNFCCC process’, these ’17(d)’ discussions were the reason for the Bonn sessions of the subsidiary bodies being held up in June 2013, but were convened in an open-ended way in Warsaw to offer  a discussion space for questions on how the negotiations would be conducted. Even as these discussions begin in a formal manner, however, the co-chairs have continued to demonstrate the agency and independence that they possess – as the informal notes indicate.

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