Shaping the Legal Form of the Durban Platform Agreement: An Equitable Outcome for Small Island Developing States


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Presented at the 12th IUCNAEL Colloquium in Tarragona, Spain on 3 July 2014 and also an in-house seminar at the Energy Studies Institute, National University of Singapore. This research is still work in progress.

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Shaping the Legal Form of the Durban Platform Agreement: An Equitable Outcome for Small Island Developing States

  1. 1. Shaping the form of the Durban Platform Agreement: An equitable outcome for Small Island Developing States (SIDS) Melissa Low ESI In-House Seminar 23 July 2014
  2. 2. Milestones in Climate Change Negotiations 2 2015 Agreement “Paris Protocol”
  3. 3. 3 Source: UN Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States (UN-OHRLLS), UNFCCC (2005) Commonwealth of the Northern Marianas, French Polynesia, New Caledonia, Anguilla, Aruba and Montserrat
  4. 4. 4 Small Island Developing States (SIDS) include low-lying coastal countries that share similar sustainable development challenges, including: •small population, •limited resources, •remoteness •susceptibility to natural disasters, •vulnerability to external shocks, •and excessive dependence on international trade. Their growth and development is often further stymied by: •high transportation and communication costs, •disproportionately expensive public administration and infrastructure due to their small size, •and little to no opportunity to create economies of scale. Challenges Facing SIDS
  5. 5. 5 1. SIDS/AOSIS position in UNFCCC since 1992 2. Legal form of the Kyoto Protocol and its limitations 3. Literature and state of play on legal form of the Durban Platform agreement 4. Present a case for a Protocol being the most equitable outcome for SIDS based on assumption that unconditional pledges/commitments and strict rules will lead to the highest climate action (mitigation and adaptation- work in progress) 5. What should the Durban Platform agreement do to for SIDS, other than legal form? Methodology
  6. 6. 6 Why SIDS? • Group of countries who, despite various definitional anomalies, share disproportionate vulnerability to the adverse effects of climate change, especially sea level rise • 2014 has been designated by the UN Secretary General Ban Ki Moon as the International Year of Small Island Developing States • SIDS will meet from 1-4 Sept 2014 in Apia, Samoa to identify priorities for the sustainable development of SIDS to be considered in the elaboration of the post- 2015 UN development agenda • Depending on level of development (and hence capability), SIDS represent a diverse set of interests at various international environmental fora, including climate change negotiations
  7. 7. 7 Why is discussion on legal form important? Timeliness & urgency A fully elaborated legal text of the agreement needs to be prepared six months ahead of COP21 in Paris (2-13 Dec 2015) in order to be considered for adoption Grave concern on the gap between aggregate emission pathways consistent with having a likely change of holding the increase in temperature to below 1.5 or 2 degrees Celcius Acceptability to Parties to the Convention Universal participation (100% of emissions) Highest levels of ambition (best that countries can do) Important for the overall functioning of the agreement, including future cycles of contributions and commitments by Parties Incentivize Parties that have not yet communicated a target/goal to do so as a matter of highest priority Parties to Climate Convention have legal commitment to do so Framework regulatory agreements such as the 1992 UNFCCC need to be filled out with more detailed provisions and kept up-to-date (Article 3)
  8. 8. 8 Current discussion on legal form (May 2014) All elements to have the same legal nature consistent with other related legal instruments that the COP has adopted, and may adopt under the Convention The legal nature of the elements of the 2015 agreement is dependent upon the substance contained within those elements • AOSIS • Coalition of Rainforest Nations • Like-Minded Developing Countries in CC • Cuba • Mexico (different depths according to CBDR) • Independent Association of Latin America and the Caribbean(AILAC) • Ukraine • European Union (Protocol and package) • New Zealand (package deal) • African Group • Japan (provisions of means of implementation) • China Proposing legal experts involvement: Venezuela, Mexico No clear position yet (in submissions): Australia, Singapore, Norway, Uzbekistan, USA Concerned with inscription/anchoring of contributions into Annex of Agreement and determination of the legal status of the contributions: South Africa, Nepal for LDC Group, Switzerland
  9. 9. 9 What are the Options for Legal form for the 2015 Climate Agreement? ‘a Protocol… under the Convention’ ‘another legal instrument… under the Convention’ ‘agreed outcome with legal force… under the Convention’ A Protocol (Article 17) Amendments (Art 15) Annexes (Art 16) Amendments to annexes (Art 16) COP decisions Does not limit the result to one instrument Could also be interpreted as legal instruments embodied in domestic, rather than international law (Source: Voight, 2012) A Protocol would not only have to recognize mitigation pledges as a means to reduce GHG emissions and prevent catastrophic climate change and ensure the very survival of SIDS, it would also have to include adaptation and the slow onset of loss and damage over time. Durban Mandate:
  10. 10. 10 What are the Options for Legal form for the 2015 Climate Agreement? To illustrate… Paris Protocol Conference of the Parties (UNFCCC) COP decisions Annexes, Amendments to Annexes Meeting of the Parties to the ‘Paris Protocol’ Subsidiary bodies National Schedules Amendments Paris Protocol General Agreement COP Decisions Amendments Protocol Legal instruments • Core of the regime • COP Decisions are usually political in nature and may or may not be legally binding, depending on the way provisions are spelled out • Violations of such political agreements may have significant reputational costs, but they do not have any international legal consequences e.g. ‘shall’ vs ‘should’
  11. 11. 11 Reasons for a Protocol 1. Clearly and unmistakably legally binding for Parties pursuant to the pacta sunt sevanda principle (Vienna Convention on the Law of Treaties, 1969) 2. Applicable to all Parties 3. Strengthens the ‘rules-based… regime under the Convention’ 4. Strengthens the ‘multi-lateral… regime under the Convention’ 5. Many commitments of Annex I Parties of the Kyoto Protocol to a second commitment period (CP2) is conditioned upon a comprehensive new agreement (‘part of the package’) 6. Timeline between adoption in 2015 and coming into effect and being implemented from 2020 is reminiscent of a process for ratification 7. For COP decisions to have a normative (‘regulatory’) effect, the COP needs to be empowered by treaty law to adopt decisions of binding nature.
  12. 12. 12 Reasons against a Protocol 1. Content of Protocol could be insufficiently ambitious and fail to contain global warming to 2 degrees Celcius 2. States would have to express consent to be bound by the Protocol ▫ Inclusivity ▫ USA requesting perfect symmetry of obligations from Annex I & Non-Annex I ▫ India refusing to accept binding targets on account of right to development & equity 3. Lessons from the Kyoto Protocol ▫ Non-Compliance ▫ Withdrawal from Kyoto Protocol & its 2nd Commitment Period  5 Dec 2011: Canada  10 Dec 2010: Japan  9 Dec 2010: Russian Federation
  13. 13. 13 Options other than a Protocol 1. ‘Package outcome’ of both a legally-binding instrument and COP decisions of various types  EU & New Zealand 2. COP Decisions ▫ Amendment (Article 15) ▫ Annex(es) (Article 16) ▫ Amendment to Annex(es) (Article 16) 3. Legal instruments embodied in domestic, rather than international law Limitations (mostly procedural) • Impossible to agree on voting rules since 1996 • Adoption of COP decisions is politically driven and by consensus, and requires ¾ of majority of consensus cannot be found
  14. 14. 14 SIDS & the importance of a Protocol • Multilateral platforms and agreements are important for small island states. • As of today, 3 out of 11 ratification of Doha Amendment of the Kyoto Protocol by SIDS ▫ Barbados on 14 August 2013 ▫ Mauritius on 5 September 2013 ▫ Federated States of Micronesia on 19 February 2014 • This highlights the faith that some of these SIDS have in legally binding instruments and the desire to hold Annex I countries to their legally binding commitments under the Kyoto Protocol.
  15. 15. 15 Discussion Legal form as a means of differentiation Obligations binding for some and voluntary or non-existent for others Used as a bargaining chip in negotiations by major emitters (China, India) for getting historical emitters (US, EU) to commit to binding, absolute emissions reduction targets and support/assistance (financial, capacity, technology) Legal binding-ness will apply to all countries who sign and ratify, and when said Protocol comes into force (depends on entry into force provision) but central obligations may differ e.g. countries may have different national schedules to determine their intended nationally determined contributions over a specified timeframe or by a target year Source: Lavanya Rjamani presentation on “Differential Treatment in International Environmental Law”, Workshop on scope, structure and design of the 2015 agreement, ADP 2-1, 29 April 2013, Bonn Germany
  16. 16. 16 SIDS & Legally Binding Agreements • SIDS have a history of pursuing legally binding agreements (Drumbl, 2000, Tulane Law Review) ▫ In response to the international community’s preference to enter into negotiating processes that ultimately end in soft law agreements with little commitment to action (Fry, 2005, Review of European, Comparative & International Law • Slow progress could be tolerated if SIDS were generally convinced that this would lead to legal bindingness in the end (Ramlogan, 2002, Vermont Journal of the Environment), or the belief that accumulative enunciation of their concerns and aspirations made by numerous non-binding texts may help express the opinio juris of the world community (Dupuy, 1991, Michigan Journal of International Law)
  17. 17. Rules of the Game • Level of ambition ▫ How much is enough to cap temperature increase to 1.5 or 2 degrees Celsius? • Frequency of reviews ▫ Will countries agree to legally increase their pledges/contributions over time in a given timeframe? ▫ Is this politically feasible? • Robustness of a transparency framework ▫ How to deal with non-compliance? 17
  18. 18. 18 Effects of a Protocol or Package Deal in numbers Even if all Parties agree on a legally binding Protocol by Paris in 2015, to come into force by 2020… Keeping in mind that a 39-44GtCO2e in 2020 is the range consistent with a likely chance of limiting warming to 2 degrees C by 2100 (UNEP, 2020) GtCO2e in 2020/ Conditions Unconditional pledges Strict rules Six Kyoto gases (CO2, CH4, N2O, HFCs, PFCs and SF6 including LULUCF CO2) Non-universal participation High ambition Conditional pledges Lenient rules Six Kyoto gases (CO2, CH4, N2O, HFCs, PFCs and SF6 including LULUCF CO2) Universal participation Low ambition High 59.4 58.1 80th 55.1 54.0 Median 51.9 52.2 20th 50.3 50.2 Low 49.7 49.1 (Source: Hohne et al, 2011, based on analysis by different modeling groups)
  19. 19. 19 What should the 2015 Climate Agreement reflect, do for SIDS? Understand the diversity of locally designed responses to CC, and provide recognition of such action ▫ System of recognition ▫ Access to support for implementation Facilitation of interaction of UNFCCC process with SIDS ▫ Engage further on means and impacts of coordinating and facilitating action ▫ Recognizing diversity of governance approaches in small islands ▫ Provide platform for practitioners to directly interact and share experiences Support and enhance existing programmes ▫ Barbados Programme of Action (BPOA) – 1994 ▫ Mauritius Strategy for the Further Implementation of the Programme of Action for the Sustainable Development of Small Island Developing States (MSI) – 2005 ▫ SIDS Accelerated Modalities of Action (SAMOA) Pathway – 2014
  20. 20. Concluding notes • Legal form of the 2015 Climate Agreement is far from settled and highly politicized/political • The distinction between legal and non-legal, hard and soft law, is not a black and white exercise, given that reality is much more complex and nuanced 1. A Protocol can provide the most equitable outcome for SIDS, given that all Parties will need to commit to emissions reductions in an attempt to cut emissions to stand a chance to limit warming to below 1.5 or 2 degrees C 2. However, options other than a Protocol exist and the negotiations will likely explore all of them before Paris, 2015 3. Apart from legal form, the 2015 Climate Agreement must have an enhanced structure to engage small island developing states through ▫ Recognition of action ▫ Facilitation of interaction ▫ Supporting implementation 20
  21. 21. 21 Thank you!