Adoption of the Paris agreement
On Saturday 12 December, to a standing ovation, and some tears of relief, the 196 Parties (195 States and 1 regional economic integration organisation) to the United Nations Framework Convention on Climate Change (UNFCCC) adopted the Paris Agreement.
How did we get here?
The UNFCCC COP in 2011 in Durban, South Africa, established the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP)1 as a subsidiary body under the convention, and launched a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties, to be adopted at COP 21 and to come into effect and be implemented from 2020.2 Parties to the UNFCCC first started working on draft ‘elements’ of a negotiating text in Lima at COP 203 and followed up in Geneva at the 8th part of the ADP’s second session. The outcome of which this session was the Geneva Text4 a compilation of all Parties’ views on the key components of a draft agreement.
Over the course of 2015, the ADP met 3 times in Bonn, Germany before COP 21 in Paris and worked to “streamline” the Geneva Text down from 90 pages to a more acceptable size, and to flesh out the COP decision that would adopt the Agreement.5 However, coming into Paris, many core issues, including finance, differentiation, reporting and international review remained unresolved. These political hot potatoes could not be resolved by the UNFCCC negotiators alone, and would require the involvement of the many government ministers attending the COP.
Finally, after 2 weeks of negotiations, bilateral talks, back-room deals, 3 all-night negotiating sessions, and a last-minute panic around the wording of Article 4, the Paris Agreement was finally adopted early Saturday evening.
What does the Paris Agreement say?
The Purpose/objective of the Paris Agreement is to “strengthen the global response to the threat of climate change”, enhancing the implementation of the (UNFCCC) Convention, including its objective.6 The objective acknowledges the needs of developing countries and qualifies the objective of the Agreement with the phrase “in the context of sustainable development and efforts to eradicate poverty”. This provision aims to address concerns from developing countries that climate action should not stifle or slow their (sustainable) development. The objective of the Paris agreement is translated into three broad overarching components:7
• A Mitigation component, which states that the increase in global average temperature needs to be held to “well below 2 °C above pre-industrial levels” and efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, be “pursued”
• An Adaptation component, which aims to increase “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
• A finance component, which aims to make finance flows consistent with a pathway towards low greenhouse gas emissions and climate- resilient development.
The broad wording of this purpose/objective is the result of a need to find compromise language that could reconcile the (often competing or even opposing) interests of the 196 Parties to the UNFCCC.
How will it work?
In order to achieve the long-term temperature goal, set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions “as soon as possible”. This is to be achieved under the Agreement through the preparation, communication and maintenance of successive nationally determined contributions (NDCs).8
At its 19th meeting in Warsaw, the COP invited Parties to “initiate or intensify” domestic preparations for their Intended Nationally Determined Contributions (INDCs) towards achieving the objective of the Convention as set out in its Article 2.9 Information on what could be included in the INDCs was elaborated (albeit in a very general manner) in Lima at COP 20.10 Once the Paris Agreement comes into force, these INDCs will become NDCs, that Parties commit to implement.
The specific targets and measures that each country11 sets for their contribution to addressing climate change is entirely self-determined. The rationale behind such a bottom-up approach is that universal participation is more likely achieved than through a top-down approach with centrally determined targets. Achieving universal participation in a new agreement was prioritised above all other considerations, with the intention that gaps in ambition12 could be addressed through the design of a mechanism for regular review and upward revision of contributions.
This is recognised in Article 3 of the Agreement, which states that the efforts of all Parties (the INDCs) “will represent a progression over time.” In order to facilitate this process the COP has mandated the Ad Hoc Working Group on the Paris Agreement (APA) to develop further guidance for the information to be provided by Parties in order to facilitate “clarity, transparency and understanding” of nationally determined contributions.13
However, the way in which NDCs are treated in the Agreement and accompanying Decision is that only mitigation contributions are explicitly required to be included in the INDCs and subsequent NDCs. This is reflected in the objective, as a long-term temperature goal is set (mitigation), but no specific targets are set for adaptation or finance. These two components will be dealt with below in their respective sections.
How regularly must NDCs be submitted/revised?
The first NDC is expected to be submitted on or before the date at which Parties ratify the Agreement.14 Most Parties have already submitted their INDCs, which, in 2020, will become their nationally determined contribution (NDC). Due to differing views among Parties, the agreement does not include a requirement for Parties to upwardly revise their current INDCs before 2020, meaning that the current INDCs submitted by Parties will be the ones they are expected to implement starting in 2020.
Following 2020 however, each Party’s successive NDC is expected to “represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition”.15 Each Party is required (shall) to communicate a NDC every five years, meaning that in 2025, Parties will submit their new NDCs, which should show a progression from their current effort.
Although the cycle for communication of NDCs is every 5 years, the Agreement does not explicitly specify that each NDC should have a time frame for implementation of 5 years. This is intentional to accommodate those Parties that have a ten-year time-frame for their NDCs. Instead, the Decision “urges” Parties whose INDCs contain a timeframe up to 2025 or 2030, to communicate a new INDC by 2020 and a further one every five years after that.16
What about adaptation and finance?
Although not explicitly linked to the preparation, implementation and communication of NDCs, action in the areas of adaptation and finance are still part of the overall purpose of the Agreement.17
The Agreement establishes a global goal on adaptation of “enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change”.18 For adaptation measures taken, the Agreement states that adaptation efforts “shall be recognized, in accordance with the modalities to be adopted by the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement at its first session.”19
This can be read to mean that INDCs and subsequent NDCs are not explicitly required to have an adaptation component, although the importance of “support for and international cooperation on adaptation efforts” is “recognized” 20 and a process has been established to ensure that adaptation efforts by developing countries are recognised.21
Although finance is not explicitly linked to the NDCs, the provision of financial resources by developed country Parties to assist developing country Parties with respect to both mitigation and adaptation is a requirement under the Agreement, and an integral part of its purpose.22 While Parties are “encouraged” to provide or continue to provide such support voluntarily, 23 developed country Parties are expected (should) to continue to take the lead in “mobilizing” climate finance from a wide variety of sources, instruments and channels.24 This should represent a progression beyond previous efforts and should aim to achieve a balance between adaptation and mitigation.25
Furthermore, the accompanying COP decision establishes that prior to 2025, the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA) will set a new collective quantified finance goal “from a floor of USD 100 billion per year” taking into account the needs and priorities of developing countries.26 The importance of adequate and predictable finance for REDD+ has also been recognised.27 Developed country Parties are also expected to communicate information on the finance provided, on a biannual basis28 and in accordance with common modalities, procedures and guidelines to be developed for the transparency of action and support.29 These will be considered at COP 24 and should be adopted at the CMA’s first meeting.30
The Agreement also establishes a process to assess the collective progress towards achieving the purpose of the Agreement and its long-term goal, which should be undertaken “in a comprehensive and facilitative manner” and cover mitigation, adaptation and the means of implementation and support.31 The first global stock-take is scheduled for 2023 and every five years thereafter.32 Its outcome “shall inform” Parties in updating and enhancing, in a nationally determined manner, their actions and support.33
Although the Paris Agreement represents the most significant global diplomatic achievement to coordinate global governmental action on climate change to date, there is still much to be done. The broad framework is now in place. The next five years before the Agreement’s entry into force will be spent elaborating the variety of modalities, rules and procedures required by the agreement including but not limited to: the features of NDCs, on adaptation actions, on finance and on transparency of action and support.
1. Decision 1/CP.17 paragraph 2
2. Ibid paragraph 4
3. Decision 1/CP.20 Annex
5. Making an analogy with domestic law, the Paris Agreement represents the general framework for coordinated action on climate change and serves the same role as primary legislation, while the COP decision fleshes out the details on how the framework agreement (principles, objectives, thematic areas of action) can be operationalized (mandates to develop rules on features of mitigation actions, on reporting) in a way that is similar to secondary legislation.
6. Paris Agreement Article 2.1
7. Paris Agreement Article 4.2
8. Paris Agreement Article 4.2
9. Decision 1/CP.19
10. Decision 1/CP.20
11. Article 4 of the Agreement clarifies that least developed countries and small island developing States may prepare and communicate strategies, plans and actions for low greenhouse gas emissions development reflecting their special circumstances, rather than requiring fully fleshed out INDC's
12. It is acknowledged in draft Decision-/CP.21 accompanying the Paris Agreement (para 17) the estimated aggregate greenhouse gas emmision levels in 2025 and 2030 resulting from the intended nationally determined contributions do not fall within least cost 2 C scenarios.
13. Draft Decision -/CP.21 Adoption of the Paris Agreement paragraph 28
14. Draft Decision -/CP.21 Adoption of the Paris Agreement paragraph 22
15. Ibid paragraph 4.3
16. Ibid paragraphs 23 and 24
17. Paris Agreement Article 2.1(b) and (c)
18. Article 7.1
19. Paris Agreement Article 7.3
20. Ibid Article 7.8
21. Draft Decision -/CP.21 Adoption of the Paris Agreement paragraph 42
22. Paris Agreement Articles 2.1 (c) and 9.1
23. Paris Agreement Article 9.2
24. Paris Agreement Article 9.3
25. Paris Agreement Article 9.4
26. Draft Decision -/CP.21 paragraph 54
27. Draft Decision -/CP.21 paragraph 55
28. Paris Agreement Article 9.5
29. Paris Agreement article 9.7
30. Decision -/CP.21 paragraph 92
31. Paris Agreement article 14.1
32. Ibid Article 14.2
33. Ibid Article 14.3