A guest lecture delivered on 24 September 2015 to Klaus Bosselmann's environmental law class.

1. COMMON IN DURBAN BUT
DIFFERENTIATED IN PARIS?
The Durban Platform and the rocky road through Paris

2. OUTLINE: PART 1
1. Introduction: Who I am and what I’m talking about
2. Background: the UNFCCC regime from 1992-2009
3. The 2011 Durban reset: ‘applicable to all’
4. Negotiations from 2012-2014
5. Questions
BREAK

3. OUTLINE: PART 2
1. Negotiations this year: Geneva to Bonn to Bonn to Bonn
2. Key issues for Paris:
1. Differentiation
2. Legal form
3. Finance
4. Loss and damage
3. Conclusion and questions

4. WHO I AM AND WHAT I’M TALKING
ABOUT
1. New Zealand lawyer
2. My research: Differentiation
3. Climate activist

5. When: 7:00 pm, Thursday 24 September 2015
Where: ClockT032/105-032 theatre, University of
Auckland
Why: The UN is about to adopt new Global Goals for
ending poverty and protecting our environment
Bring your own torch! Snacks provided.
Speakers
Barry Coates, former Oxfam NZ executive director
Julie Anne Genter, Green Party MP
Alex Johnston, Fossil Free UOA
David Tong, Fast for the Climate coordinator
Dewy Sacayan, youth delegate to COP20

6. THE UNFCCC FROM 1992-2009
1. Rio 1992: The Convention
2. Berlin Mandate
3. Kyoto Protocol
4. Bali Action Plan
5. Copenhagen

7. THE CONVENTION (1992)
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.
- UNFCCC, art 3(1)
[…] taking into account [the UNFCCC Parties’] common but differentiated
responsibilities and their specific national and regional development
priorities, objectives and circumstances […]
- UNFCCC, art 4

8. BERLIN TO KYOTO (1995-1997)
‘In the developed world only two people ride in a car, and yet
you want us to give up riding on a bus.’
- Lead Chinese negotiator, COP 3 in Kyoto, 1997
• Berlin mandate imposed strict firewall of differentiation
• Carried over into Kyoto Protocol

9. THE BALI ACTION PLAN (2007-
2009)
1. Quantified emissions limitation and reduction objectives
(QELROS) for Annex I Parties
2. Nationally appropriate mitigation actions (NAMAS) for
Non-Annex Parties

10. COPENHAGEN
Oh dear.

11. THE DURBAN RESET:
APPLICABLE TO ALL
• New process launched.
• Three key points:
1. an agreement ‘with legal force’
2. ‘under the Convention applicable to all Parties’
3. to be agreed in 2015 and implemented from 2020

12. FROM DOHA TO LIMA
• Repeated debates about equity and differentiation
• Without prejudice ‘Intended Nationally Determined
Contribution’ process
• Lima Call for Climate Action confirms Parties’ will be
differentiated – but how?

13. QUESTIONS AND BREAK
Coming up:
1. Negotiations this year: Geneva to Bonn to Bonn to Bonn
2. Key issues for Paris:
1. Differentiation
2. Legal form
3. Finance
4. Loss and damage
3. Conclusion and questions

14. THE INDC PROCESS
• Bottom up commitments
• But not binding – without prejudice
• Due already, but ‘final’ deadline in October

15. GENEVA (JANUARY)
• A draft text
• But no ‘streamlining’
• 90 pages
• Contains the architectures of about five possible treaties

16. ADP 2.8 IN BONN (JUNE AND
AUGUST)
• The ‘Chair’s Tool’
• Narrowing in towards agreement
• But still unsure: What’s in, what’s out, what’s where?
• Five days of negotiations before Paris in October.

17. NEGOTIATING DYNAMICS
Ambitious / Cooperative
Lacking ambition, lacking cooperation
DevelopedDeveloping

18. NEGOTIATING DYNAMICS
Ambitious / Cooperative
Lacking ambition, lacking cooperation
DevelopedDeveloping
Europe
Umbrella Group
LMDCs
BAS IC
LDCs
SIDS / AOSIS

19. KEY ISSUES NOW
1. Differentiation
2. Legal form
3. Finance
4. Loss and damage

20. DIFFERENTIATION
• Move towards self differentiation
• But details uncertain

21. AN EMERGING GENERAL
PRINCIPLE?
‘14. The obligations of States are common but differentiated.’
- Oslo Principles, 2015
‘In my view, the [common but differentiated responsibilities]
principle is not necessary, and it is not helpful. […] To me, this
notion is nowhere close to being either hard or soft law […]’
- Susan Biniaz, US Department of State, 2002

22. TWO ARCHITECTURES FOR
MITIGATION COMMITMENTS
1. Top down
• Idealised model of Kyoto Protocol
• Protocol sets out each Parties’ commitment
2. Bottom up
• Each Party sets their own target
• Copenhagen Accord and Cancun Agreements

23. FIVE MODELS IN THE GENEVA
DRAFT TEXT
1. Retain the current Annexes
2. Draft new Annexes
3. Emissions budget and equity reference framework
4. Pledge and formal review
5. Pledge and ‘chat’

24. RETAINING CURRENT
ANNEXES
• Superficially reflects historical responsibility and respective
capabilities
• Eight of the top ten per capita emitters are Non-Annex I
• Grubb: ‘[t]he world has changed much faster than the
UNFCCC’

25. DRAFTING NEW ANNEXES
• Devil would be in the detail
• Proposed by the US in Geneva in February
• Politically impossible
• LMDCs and BASIC oppose
• Russian proposal to amend Annexes stuck in filibuster

26. EMISSIONS BUDGET AND EQUITY
REFERENCE FRAMEWORK
• Proposed by AOSIS
• Ecologically sound in theory
• Diplomatically infeasible

27. PLEDGE AND REVIEW PLUS
• May encourage participation
• Will require compromises, but is a likely landing point
• Blends bottom-up and top-down elements
• Review could be ex ante or ex post
• Can build on existing review models

28. PLEDGE AND ‘CHAT’
‘Parties know best their specific circumstances,
responsibilities, capacities and needs’
- Switzerland, February 2015
• Winkler: ‘very unlikely’ to achieve ultimate objective
• Parties self-assessments unlikely to have ethical basis
• Opposed by G77+China in Geneva,

29. LEGAL FORM
• What goes where?
• What kind of treaty?

30. FINANCE AND LOSS &
DAMAGE
• Finance: GCF and 2020 US$100bn pledge
• Loss and damage: operationalising Warsaw

31. FORECAST FOR PARIS
• One of two pledge and review models
• Need for formalised top down elements
• Will need finance or loss and damage to get deal
• If Parties cannot agree, may collapse into pledge and chat
• Unclear what will be in what kind of agreement, and what
will be in COP decision
• And what of Workstream 2 on pre-2020?

32. QUESTIONS?
(Yes, that’s a negotiator sleeping)