A “special list” could encourage countries to be ambitious in their carbon cutting plans, argues environmental law expert
The negotiations on the 2015 climate change agreement are following a new approach. This time it’s not about top-down targets as in the Kyoto Protocol.
Instead negotiators are focusing on a “bottom-up” approach based on nationally determined contributions (NDCs). That means each country decides what it is willing to do as part of the global effort to fight climate change.
The toughest problem is how to bridge the gap, expected to be massive, between the contributions that each country is willing to make and the emission reductions needed to keep warming to below 2°C.
It is not yet clear how much of the expected “Paris 2015 package” will be in the shape of a legally binding agreement. At this point it is not even clear that there will be enough progress in the negotiations by December next year for the Paris climate change conference to be able to adopt an agreement.
Having said that, many expect that there will be some kind of legal agreement, either in Paris or soon after. There are still question marks over how the agreement will be structured and what it will contain.
How will the NDCs relate to the rest of the potential Paris 2015 package (which could include non-legally binding decisions and political agreements)?
Many fear the talks could end in stalemate or an inadequate outcome based on the lowest common denominator. That is because decisions must be consensual, or at least everyone has to agree enough not to object actively.
One possible way around that would be to adopt the legal 2015 agreement as an amendment to the UNFCCC , which could be passed by a three-quarters majority vote (UNFCCC Article 15 ). It would not be ideal, but the agreement could be designed to encourage more countries to join and make it easy for them to do so.
FIELD is considering ways to encourage countries to submit ambitious NDCs and create a better chance of reaching strong and acceptable agreement.
This could take the form of a special list, annex or optional protocol, only open to countries that can show that their NDCs are above a certain standard.
The special category for countries that try extra hard would be additional to the main agreement, which all countries could join.
This idea builds on research which suggests that in some circumstances states may be more accepting of legal design choices that stand out – that are prominent and visible.
Research by Jean Galbraith, which FIELD has highlighted, showed that states display certain “built-in” biases when they negotiate and ratify treaties.
Negotiators would need to define and agree on the criteria that a country would need to meet to be allowed into the special category. This could raise tough questions, as different countries or categories of countries should have different qualification criteria.
Could it mean that some developing countries with rapidly growing emissions could have tougher criteria than some developed countries?
For example, would they be expected to agree to reduce emissions by a large percentage in relation to business-as-usual or have tough quantified targets for certain sectors?
Developing countries’ Nationally Appropriate Mitigation Actions (NAMAs) already include various percentage targets, including specific ones in sectors such as energy and forests.
The climate negotiations revolve around questions about how to divide the global effort to fight climate change in a fair way. The answers must take into account historical responsibility for climate change and growing emissions in rapidly industrialising developing countries.
Those questions will not go away – and they need to be resolved, even if there might not be a perfect solution. A key point is that developed countries have committed to taking the lead in combating climate change. They need to deliver on this, in particular before 2020, when the new agreement is meant to come into effect.
Negotiators would have a wide range of potential options for entry criteria and for the legal design of the special category, which would create considerable space for devising compromises.
For example, one option could be to start by applying less demanding and less differentiated criteria, which could be tightened in stages through a link with the agreement’s review system.
This ties in with the idea of a cycle of future NDCs and reviews, which negotiators are talking about currently. It could involve strengthening everyone’s NDCs in stages following review and negotiation, while at the same time increasing differentiation between countries step-by-step.
The main challenge would be to do it fast enough to slow the advance of climate change.
Initial criteria could, for example, relate to developed countries’ pre-2020 efforts and additional commitments in the form of clear, unconditional and comparable quantified economy-wide targets, and to contributions that built on developing countries’ NAMAs, such as sectoral targets.
A special top category could help counter the weaknesses of a bottom-up agreement. Giving prominent recognition – and perhaps special benefits – to countries whose NDCs are above-adequate would reward those countries.
In combination with a strong review system it could form part of a mechanism for strengthening emission reductions over time, which many countries have said they want.
This idea and other examples of possible building blocks and options for the 2015 agreement are included in this recent FIELD graphic.
Joy Hyvarinen is executive director of FIELD, the Foundation for International Environmental Law and Development