Legal elements in proposed UN climate deal find mixed support

New submissions to UN indicate preference for more general rules on accounting and monitoring emissions

Delegates at the 2012 UN climate summit in Doha, Qatar (Pic: UNFCCC/Flickr)

Delegates at the 2012 UN climate summit in Doha, Qatar (Pic: UNFCCC/Flickr)

By Ed King

Support for a global agreement on climate change with some legal elements but without an overarching UN treaty appears to be growing among developed countries.

Proposals sent to the UN by Australia, New Zealand and Japan indicate strong support for a “rules-based regime”, but steer clear of a deal that would be internationally binding.

An EU submission also released this week says commitments must be legally binding, but says the level and type of commitment can vary on a country-by-country basis.

The legal form of any new climate agreement has been hotly contested since 2011, when plans for a protocol, instrument or agreed outcome were revealed.

On Wednesday, the US chief climate envoy Todd Stern repeated his demand that national governments should not be legally bound to deliver on those plans. A stricter regime would alienate some countries, he warned – notably the US.

“Some will disapprove,” he said. “We would counsel against that kind of orthodoxy.”

In its 20-page submission, the EU says a new deal will need to strengthen a “multilateral rules-based regime”, with enforced measuring, reporting and transparency standards.

“All parties should have legally binding mitigation commitments in the 2015 agreement, but they will not be the same in level of ambition, and commitment types will differ,” it says.

Australia calls for the establishment of “durable rules-based architecture” that will ensure “claimed emission cuts are real”, emphasising that countries need flexibility on how ambitious their carbon cuts are.

Japan says national contributions “should not be legally binding”, while in a plan supported by the US, New Zealand proposes a “template or checklist” that would help countries deliver contributions.

Leading economies are expected to deliver what are termed “intended nationally determined contributions” (INDCs) by March 2015.

Talks on what should be included in the INDCs resume in Bonn next week. Many developing countries want adaptation and finance pledges to be included along with any carbon cuts.

The latest proposals agree that all countries, including poorer ones, should be required to produce INDC as part of the deal.

Countries would also have to follow specific guidelines on how they should be presented, but their contents would be down to national governments.

Some observers fear that the lack of any legal recourse will lead to a weak agreement that will not deliver the required level of emission cuts.

“This is a major flaw in what is emerging as a future legal agreement,” said Joy Hyvarinen from the Foundation for International Environmental Law and Development.

“All expect there will be some magic in between inadequate INDCs and Paris, and they will then review them in a nice Q&A session and countries will submit higher targets.”

The EU is primed to announce its 2030 climate and energy targets next week. Officials from the world’s largest emitters – China and the US – say they are on course to release their numbers next year.


The 2015 agreement will replace the 1997 Kyoto Protocol, under which most developed countries – with the glaring exception of the US – agreed to legally binding carbon cuts.

But a new deal must ensure that all parties contribute their fair share of emission reductions, say the EU, Australia, New Zealand and Japan.

That includes developing countries, which were given a free pass under Kyoto.

“In order to be consistent parties obligations must reflect evolving realities, circumstances, responsibilities and capabilities in a fair and dynamic way that is ambitious enough to keep us on track to achieve the below 2C objective,” says the EU.

Warming above 2C could lead to an increased frequency of extreme weather events, say scientists, and accelerate ice melt in the polar regions.

The EU wants an international process to “consider and analyse” INDCs between June and December 2015 which would assess the fairness of individual efforts, although it does not specify how this would work or who would take ownership.

Australia calls for a “common playing field” with “clear, credible and quantifiable emission reduction outcomes by all,” emphasising that any deal must boost economic growth.

And in what is a common thread through all the documents, New Zealand says that any pledges must be determined by national governments as opposed to a scientific or international panel.

“Each party should table the most ambitious mitigation contribution its national circumstances will allow it to undertake,” it says.

– Obligations must reflect evolving realities, circumstances
– Measuring, reporting + verification is fundamental
– Need for a common and regular review process
– Countries should explain why emission pledges are fair
– Aggregate of all cuts should mean <2C warming
– Risk of chaos unless pledges are over same time (5 or 10 years)

New Zealand:
– Mitigation is central to the INDC process
– Adaptation obligations shouldn’t be determined by INDC process
– All countries must offer pledge for 2015 deal
– All countries should aim for economy-wide targets
– Wants a template for INDCs by Lima
– Review process should not re-determine contributions made by others

– Common playing field and a deal that boosts economic growth
– Clear, credible and quantifiable emission reduction outcomes
– Does not want UN to offer any “value judgements” on INDCs
– Cuts will be appropriate to their national circumstances
– Says post 2020 “realities” mean public $ will be limited

– Major economies to deliver economy-wide commitments
– INDCs should not be legally binding
– Mitigation should be central to INDCs
– Keen for 10 year commitment period to 2020
– Any review must consider limited time in the run-up to COP21

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