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THE WARSAW CLIMATE NEGOTIATIONS: EMERGING UNDERSTANDINGS AND BATTLE LINES ON THE ROAD TO THE 2015 CLIMATE AGREEMENT

Published online by Cambridge University Press:  17 July 2014

Lavanya Rajamani
Lavanya Rajamani*
Affiliation:
Professor, Centre for Policy Research, New Delhi, [email protected].
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Abstract

The Warsaw conference, 2013, marked the halfway point from the Durban conference, 2011, that launched negotiations towards a 2015 climate agreement and the Paris conference, 2015, slated as the deadline for these negotiations. As such, the Warsaw conference needed to register a step change in the process—from the airing of differences to negotiating them. It also needed to create the conditions necessary to reach agreement in 2015. This article analyses the outcome of the Warsaw negotiations with a view to determining the extent to which it paves the way for a 2015 climate agreement. In particular, this article explores the divisions over, prospects for and contours of a likely 2015 agreement. The 2015 agreement is likely to be shaped by the resolution Parties arrive at on three overarching issues. These are: architecture—whether the agreement will be ‘top-down’ (prescriptive) or ‘bottom-up’ (facilitative) or a hybrid version of the two; differentiation—the nature and extent of it, and in particular whether it will eschew or replicate the Kyoto model of differentiation and related vision of equity; and legal form—whether the 2015 agreement will be legally binding, and if yes, as is likely, which elements of the 2015 package will be in the legally binding instrument and which elements will be in non-binding complementary decisions. The Warsaw outcome will therefore be analysed with a view to providing insights into the likely architecture and legal form of as well as treatment of differentiation and equity in the 2015 agreement.

Keywords

architectureclimate change negotiationsdifferentiationlegal form2015 Climate Agreement
Type
Shorter Articles and Notes
Information
International & Comparative Law Quarterly , Volume 63 , Issue 3 , July 2014 , pp. 721 - 740
Copyright
Copyright © British Institute of International and Comparative Law 2014 

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References

1 M McGrath, ‘Typhoon prompts “fast” by Philippines climate delegate’ (BBC News Science and Environment, 11 November 2013) <http://www.bbc.com/news/science-environment-24899647>.

2 E Lies and S Reklev, ‘Japan Slashes CO2 Emissions Targets at UN Climate Talks, Prompting Criticism’ (Huffington Post, 15 November 2013) < http://www.huffingtonpost.com/2013/11/15/japan-co2-emissions-targets_n_4280593.html>; ‘Japan slashes climate reduction target amid nuclear shutdown’ (BBC News Asia, 15 November 2013) <http://www.bbc.com/news/world-asia-24952155>.

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4 Green Climate Fund, ‘Green Climate Fund Trust Fund Financial Report’ (17 September 2013) GCF/B.05/Inf.04.

5 UNFCCC, ‘Decision 2/CP.15 Copenhagen Accord’ (30 March 2010) FCCC/CP/2009/11/Add.1 (Copenhagen Accord) para 8; and UNFCCC, ‘Decision 1/CP.16 The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’ (15 March 2011) FCCC/CP/2010/7/Add.1 (Cancun Agreements (LCA)) para 98.

6 United Nations Framework Convention on Climate Change (adopted 29 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (FCCC).

7 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 10 December 1997, entered into force 16 February 2005) FCCC/CP/1997/7/Add.1 (Kyoto Protocol).

8 UNFCCC, ‘Decision 1/CP.17 Establishment of an Ad Hoc Working Group on a Durban Platform for Enhanced Action, 2011’ (15 March 2012) FCCC/CP/2011/9/Add.1 (Durban Platform). See for a detailed discussion of this decision, Rajamani, L, ‘The Durban Platform for Enhanced Action and the Future of the Climate Regime’ (2012) 61(2) ICLQ 501CrossRefGoogle Scholar; and see also, Bodansky, D, The Durban Platform Negotiations: Goals and Options (Harvard Project on Climate Agreements, Massachusetts July 2012) 3Google Scholar <http://belfercenter.ksg.harvard.edu/files/bodansky_durban2_vp.pdf>.

9 Durban Platform, para 4.

10 UNFCCC, ‘Decision 2/CP.18 Advancing the Durban Platform’ (28 February 2013) FCCC/CP/2012/8/Add.1 (Doha ADP decision) para 9.

11 UNFCCC, ‘Scenario note on the third part of the second session of the Ad Hoc Working Group on the Durban Platform for Enhanced Action, Note by Co-Chairs’ (21 October 2013) ADP.2013.16.InformalNote, para 5.

12 See eg UNFCCC, ‘Submission by Brazil, Views of Brazil on the Implementation of all the Elements of Decision 1/CP.17, (A) Matters Related To Paragraphs 2 to 6 (Workstream 1), on the work of the Ad Hoc Working Group on the Durban Platform for Enhanced Action’ (12 September 2013) 1 <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_brazil_workstream_1_domestic_debates_20130912.pdf>.

13 See eg UNFCCC, ‘Submission by Lithuania and the European Commission on behalf of the European Union and its Member States: Further elaboration of elements of a step wise process for ambitious mitigation commitments in the 2015 agreement’ (16 September 2013) <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_eu_workstream_1_mitigation_20130916.pdf>.

14 There are proposals that contributions should be ‘housed’ elsewhere. See UNFCCC, ‘Submission by the United States, U.S. Submission on Elements of the 2015 Agreement’ (12 February 2014) <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/u.s._submission_on_elements_of_the_2105_agreement.pdf>.

15 The Chairs in early versions of the Warsaw ADP decision text had included an Annex that distilled elements of convergence and divergence that had emerged in focused discussions at Warsaw among Parties, but this did not survive in the final decision due to strong objections from the LMDCs, BASIC and Singapore.

16 The huddle was used in Durban to good effect to resolve the final divergence between the EU and India. See Tollefson, J, ‘Durban maps path to climate treaty’ (2011) 480(7377) Nature 299–300CrossRefGoogle ScholarPubMed <http://www.nature.com/news/durban-maps-path-to-climate-treaty-1.9635?referral=true>, for a picture of the famous huddle at Durban. Given the backlash unleashed against closed-door small-group negotiations at Copenhagen, and the suspicion thereof, the ‘huddle’ has since Durban emerged as a preferred mode of resolving final differences. Such huddles are convened spontaneously on the floor of the plenary. Key negotiators gather together to work on the contentious text. Although, in principle, anyone can join the huddle, only those in the inner few rings of the huddle play a decisive role. Participation in huddles demands physical strength and stature and there have been rumbles of discontent against this mode of resolving differences, which marginalizes many Parties.

17 UNFCCC, ‘Decision 1/CP.19 Further Advancing the Durban Platform’ (31 January 2014) FCCC/CP/2013/10/Add.1 (Warsaw ADP Decision) para 2(b).

18 ibid, para 2(c).

19 See generally Rajamani, L, ‘The Making and Unmaking of the Copenhagen Accord’ (2010) 59(3) ICLQ 824Google Scholar.

20 See generally, Rajamani, L, ‘The Cancun Climate Change Agreements: Reading the Text, Subtext and Tea Leaves’ (2011) 60(2) ICLQ 499–519CrossRefGoogle Scholar.

21 The Copenhagen Accord, since it could not be adopted as a COP decision, has no formal legal status in the FCCC regime. See, UNFCCC, ‘Notification to Parties: Clarification relating to the Notification of 18 January 2010’ (25 January 2010) <https://unfccc.int/files/parties_and_observers/notifications/application/pdf/100125_noti_clarification.pdf>.

22 UNFCCC, ‘Compilation of economy-wide emission reduction targets to be implemented by Parties included in Annex I to the Convention’ (7 June 2001) FCCC/SB/2011/INF.1/Rev.1; and UNFCCC, ‘Compilation of Information on Nationally Appropriate Mitigation Actions to be Implemented by Parties not Included in Annex I to the Convention’ (18 March 2011) FCCC/AWGLCA/2011/INF.1.

23 UNEP, ‘The Emissions Gap Report 2013: A UNEP Synthesis Report’ (2013).

24 UNFCCC, ‘Decision 1/CP.18 Agreed outcome pursuant to the Bali Action Plan’ (28 February 2013) FCCC/CP/2012/8/Add.1, paras 18 and 19.

25 ibid, para 8.

26 Cancun Agreements (LCA), para 4; and UNEP, ‘Bridging the Emissions Gap – A UNEP Synthesis Report’ (2011).

27 Warsaw ADP Decision, para 2(c).

28 Oral Intervention by Singapore, ADP 2.4, 10–14 March, Bonn, Germany (12 March 2014).

29 UNFCCC, ‘Note on Progress: Note by the Co-Chairs’ (13 August 2013) 2 <http://unfccc.int/resource/docs/2013/adp2/eng/14infnot.pdf>; See eg UNFCCC, ‘Submission by New Zealand, Submission to the Ad Hoc Working Group on the Durban Platform for Enhanced Action: Work Stream 1’ (12 March 2014) 6 <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp2-4_submission_by_new_zealand_submission_20140312.pdf>.

30 Warsaw ADP Decision, para 2(c).

31 See eg Submission by Lithuania and the European Commission (16 September 2013) (n 13). See also, UNFCCC, ‘Submission by South Africa: South African Submission on Mitigation under the Ad hoc Working Group on the Durban Platform for Enhanced Action’ (30 September 2013) <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_south_africa_workstream_1__mitigation_20130930.pdf>.

32 See eg Submission by Lithuania and the European Commission (16 September 2013) (n 13) 4; and see also, UNFCCC, ‘Submission by Greece and the European Commission on behalf of the European Union and its Member States: The 2015 Agreement – Priorities for 2014’ (3 March 2014) <http://unfccc.int/files/bodies/application/pdf/el-02-28-eu_adp_ws1_submission.pdf>.

33 UNFCCC, ‘Submission by Environmental Integrity Group (EIG), 2015 Agreement: Contours and Core Elements, Specific Views in the area of Mitigation, Adaptation and Means of Implementation, and Respective Deliverables in 2013, and Planning of Work 2014/2015, ADP 2.3, workstream 1’ (23 September 2013) <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_eig_workstream_1_20130923.pdf>. The EIG comprises Liechtenstein, Mexico, Monaco, the Republic of Korea and Switzerland.

34 UNFCCC, ‘Submission by the United States: U.S. Submission on the 2015 Agreement’ (17 October 2013) <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_usa_workstream_1_20131017.pdf>.

35 ibid 9–10. See Submission by South Africa (30 September 2013) (n 31) 4. See also UNFCCC, ‘Submission by New Zealand, Submission to the Ad Hoc Working Group on the Durban Platform for Enhanced Action, Work Stream 1’ (15 October 2013), <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_new_zealand_workstream_1_20131015.pdf>.

36 See eg Submission by the United States (17 October 2013) (n 34). See also Submission by South Africa (30 September 2013) (n 31).

37 The LMDCs comprises Algeria, Argentina, Bolivia, Cuba, China, Democratic Republic of the Congo, Dominica, Ecuador, Egypt, El Salvador, India, Iran, Iraq, Kuwait, Libya, Malaysia, Mali, Nicaragua, Pakistan, Philippines, Qatar, Saudi Arabia, Sri Lanka, Sudan, Syria and Venezuela.

38 See eg UNFCCC, ‘Submission by China: China's Submission on the Work of the Ad Hoc Working Group on Durban Platform for Enhanced Action’ (6 March 2014) 2 <http://unfccc.int/files/bodies/application/pdf/20140306-submission_on_adp_by_china__without_cover_page.pdf> (noting that submission of information must be differentiated in accordance with FCCC Article 12).

39 Submission by Lithuania and the European Commission (16 September 2013) (n 13) 2.

40 UNFCCC, ‘Umbrella Group Opening Statement’ (10 March 2014) <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp2-4_umbrella_20140314.pdf>.

41 Submission by the United States (17 October 2013) (n 34) 3.

42 Submission by South Africa (30 September 2013) (n 31) 4.

43 See UNFCCC, ‘Submission by Swaziland on behalf of the African Group’ (19 September 2013) <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_african_group_workstream_2_20130919.pdf>. This principle-based reference framework proposes to use a set of objective criteria in relation to historical responsibility, current capability and development needs to determine the required global effort as well as fair shares of Parties. Such a framework was first alluded to by BASIC Experts in Experts from BASIC countries, ‘Equitable access to sustainable Development, Contribution to the Body of Scientific Knowledge – A Paper by Experts from BASIC Countries’ (2011), and later fleshed out in X Ngwadla, ‘Equitable Access to Sustainable Development: Relevance to Negotiations and Actions on Climate Change’ (Mitigation Action Plans & Scenarios (MAPS) Research Paper Issue 10, Cape Town 2013) <http://www.mapsprogramme.org/wp-content/uploads/EASD-Relevance-to-negotiations_Paper.pdf>. See also X Ngwadla and L Rajamani, ‘Operationalising an Equity Reference Framework in the Climate Change Regime: Legal and Technical Perspectives’ (MAPS Research Paper, Cape Town forthcoming 2014).

44 Durban Platform, para 2.

45 Warsaw ADP Decision, para 2(b).

46 See eg Submission by the United States (17 October 2013) (n 34).

47 ibid.

48 Submission by Lithuania and the European Commission (16 September 2013) (n 13). See also, UNFCCC, ‘Submission by Swaziland on behalf of the Africa Group in respect of Workstream I: 2015 Agreement under the ADP’ (30 April 2013) <http://unfccc.int/files/bodies/awg/application/pdf/adp_2_african_group_29042013.pdf>.

49 Submission by Swaziland (19 September 2013) (n 43). See also, Ngwadla and Rajamani (n 43).

50 AILAC comprises Chile, Colombia, Costa Rica, Guatemala, Panama and Peru.

51 Submission by Lithuania and the European Commission (16 September 2013) (n 13).

52 See Submission by New Zealand (12 March 2014) (n 29).

53 United Nations, ‘Climate Summit 2014’ <http://www.un.org/climatechange/summit2014/>.

54 UNFCCC, ‘Submission by LMDCs, Submission on Elements of the 2015 Agreed Outcome’ (9 March 2014) <http://unfccc.int/bodies/awg/items/7398.php>; and Submission by China (6 March 2014) (n 38).

55 An assessment process could be anchored under the Convention through a COP decision. For a discussion of further legal and architectural options for anchoring an assessment process see Ngwadla and Rajamani (n 43).

56 See eg Submission by the United States (12 February 2014) (n 14); and, Submission by New Zealand (12 March 2014) (n 29) (noting that ‘nationally determined commitments should sit in national schedules supplementary to, and outside the legally binding agreement’).

57 Submission by LMDCs (9 March 2014) (n 54). See also UNFCCC, ‘Submission by India: Submission by India on the Work of the Ad-Hoc Working Group on the Durban Platform for Enhanced Action: Workstream I’ (13 September 2013) <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_india_workstream_1_20130913.pdf>; and Submission by China (6 March 2014) (n 38).

58 See eg UNFCCC, ‘Submission by United States, ADP Workstream 1: 2015 Agreement’ (12 March 2013) 3 <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_usa_workstream_1_20130312.pdf>; UNFCCC, ‘Submission by Australia: Submission under the Durban Platform for Enhanced Action, The 2015 climate change agreement’ (26 March 2013) <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_australia_workstream_1_20130326.pdf>; UNFCCC, ‘Submission by Japan: Information, views and proposals on matters related to the work of Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP)’ (10 September 2013) 2 <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_japan_workstream_1_and_2_20130910.pdf>; and UNFCCC, ‘Submission by Canada: Views on advancing the work of the Durban Platform’ (12 April 2013) 2 <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_canada_workstream_1_and_2_en_20130412.pdf>.

59 Submission by EIG (23 September 2013) (n 33).

60 UNFCCC, ‘Submission by Singapore, Submission by Singapore to the Ad Hoc Working Group on the Durban Platform for Enhanced Action – Workstream 1’ (2 September 2013) <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_singapore_workstream1_20130902.pdf>.

61 Submission by the United States (12 March 2013) (n 58) 3 (noting that ‘while there would be a common commitment to come forward with mitigation contributions, self-identification of measures would result in self-differentiation consistent with national circumstances, capabilities, etc.’).

62 Submission by Australia (26 March 2013) (n 58) 4.

63 Submission by Japan (10 September 2013) (n 58) 2.

64 Submission by the United States (12 March 2013) (n 58) 2; and Submission by EIG (23 September 2013) (n 33) 3.

65 Submission by Canada (12 April 2013) (n 58) 2 (noting that ‘to encourage greater and broader ambition continually, a new climate change regime should provide countries with the flexibility to voluntarily modify and update their mitigation commitments, with a view to encouraging more aggressive action over time’.).

66 Submission by EIG (23 September 2013) (n 33) 3 (noting the need to ‘[e]xplore options and ways for unilateral enhancement of mitigation commitments by a Party concerned under the 2015 Agreement’).

67 Submission by the United States (17 October 2013) (n 34) 4.

68 Submission by Lithuania and the European Commission (16 September 2013) (n 13).

69 UNFCCC, ‘Submission by AILAC, ADP – Planning of Work in 2013’ (1 March 2013) <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_ailac_workstream1_20130301.pdf>.

70 Submission by Lithuania and the European Commission (16 September 2013) (n 13) 2 (‘Those principles must be applied in a dynamic way such that all Parties participate over time in accordance with their evolving responsibilities and capabilities.’).

71 Submission by AILAC (1 March 2013) (n 69) 3 (‘The Principles of the Convention should be applied in a contemporary context, evolving over time along with changing national circumstances.’).

72 Submission by Lithuania and the European Commission (16 September 2013) (n 13) 4.

73 UNFCCC, Submission by AILAC, Submission on the Ad Hoc Working Group on the Durban Platform (ADP) (10 March 2014) 9 <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp2.4_submission_by_ailac_20140310.pdf>.

74 Submission by Swaziland (19 September 2013) (n 43).

75 Kyoto Protocol, art 3 and annexes.

76 Durban Platform, para 2.

77 The term ‘applicable to all’ in the Durban Platform decision while legally inconsequential (as instruments can be applicable to all without being uniformly applicable to all) has been interpreted by many developed countries as signalling a shift away from the Kyoto-style differentiation and towards greater symmetry (in legal form, even if not in stringency) for all.

78 UNFCCC, ‘Submission by Swaziland on behalf of the African Group under Workstream I of the ADP’ (8 October 2013) <http://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_african_group_workstream_1_20131008.pdf>.

79 See Ngwadla and Rajamani (n 43). See eg Oral Intervention by South Africa, ADP 2.4, 10–14 March, Bonn, Germany (12 March 2014).

80 Copenhagen Accord, paras 4 and 5; and Cancun Agreements (LCA), Section IIIA and Section IIIB.

81 See Webcast of Plenary of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), resumed 6th meeting, 23 November 2013 <http://unfccc4.meta-fusion.com/kongresse/cop19/templ/play.php?id_kongresssession=7053&theme=unfccc> (starting at 56.30 minutes).

82 See eg UNFCCC, ‘Submission by Switzerland: Elements of the 2015 Agreement’ (4 March 2014) <http://unfccc.int/files/bodies/application/pdf/elements_of_the_agreement_adp_ws1__switzerlands_views.pdf>.

83 Submission by LMDCs (9 March 2014) (n 54) 4. Oral Intervention by Argentina, ADP 2.4, 10–14 March, Bonn, Germany (11 March 2014).

84 See eg Submission by the United States (12 February 2014) (n 14); and, Submission by Canada (12 April 2013) (n 58).

85 Oral Intervention by Switzerland, ADP 2.4, 10–14 March, Bonn, Germany (12 March 2014). See also Submission by Switzerland (4 March 2014) (n 82).

86 Submission by LMDCs (9 March 2014) (n 54) 4–5. See also, Submission by China (6 March 2014) (n 38) 2.

87 Warsaw ADP Decision, para 2(b).

88 ibid, para 2(b) and 2(c).

89 ibid, para 2(b).

90 Durban Platform, para 2.

91 A formal account of ‘bindingness’ would suggest that the negotiated legal instrument in question would render a particular state conduct non-optional as well as judicially enforceable. See Brunnée, J, ‘COPing with Consent: Law-Making under Multilateral Environmental Agreements’ (2002) 15 LJIL 1CrossRefGoogle Scholar, 32.

92 Submission by Lithuania and the European Commission (16 September 2013) (n 13) (the EU notes that mitigation commitments should be a part of the 2015 agreement).

93 Submission by Australia (26 March 2013) (n 58) 4.

94 Submission by China (6 March 2014) (n 38) 4–5.

95 Submission by South Africa (30 September 2013) (n 31) 4.

96 Submission by the United States (12 February 2014) (n 14) 4.

97 The Cancun pledges are contained in information documents. See Compilations of economy-wide emission reduction targets and Compilation of Information on Nationally Appropriate Mitigation Actions (n 22).

98 The FCCC Secretariat functions as a repository for information, as for instance, in relation to national communications from Parties.

99 Submission by the United States (12 February 2014) (n 14) 4.

100 Submission by New Zealand (12 March 2014) (n 29) 2.

101 Submission by Switzerland, Elements of the 2015 Agreement (4 March 2014) (n 82). See also Submission by AILAC (10 March 2014) (n 73).

102 See Aust, A, Modern Treaty Law and Practice (3rd edn, CUP 2013) 383CrossRefGoogle Scholar.

103 Rajamani (n 8) 507.

104 Submission by China (6 March 2014) (n 38) 2. See also Submission by LMDCs (9 March 2014) (n 54) 3 (noting that ‘[a]ll elements of the 2015 agreed outcome should have the same legal nature, consistent with any other related legal instruments that the COP has adopted, and may adopt under the Convention’).

105 See eg UNFCCC, ‘Submission by India, in Views on a workplan for the Ad Hoc Working Group on the Durban Platform for Enhanced Action’ (30 April 2012) FCCC/ADP/2012/MISC.3, 33, 36.