'Lima Call to Climate Action'

COMMENTARY

Table of ContentsVol 50, No 1 - January 03, 2015'Lima Call to Climate Action'Lavanya Rajamani View DownloadThe United Nations climate talks in Lima, Peru, were important as the last preparatory meet ahead of the Paris talks in late 2015, where a new global agreement to combat climate change is to be negotiated. While few would characterise the "Lima Call to Climate Action" as a resounding success, given the deep differences that plague the climate negotiations, the Lima call represents progress and will stand countries in good stead as the drum roll for Paris begins.

Lavanya Rajamani (lavanya.rajamani@cprindia.org) is a professor at the Centre for Policy Research, New Delhi.

The United Nations climate negotiations in Lima, December 2014, marked an important moment in the ongoing negotiations towards the 2015 climate agreement due to be concluded in Paris. As the French foreign minister, Laurent Fabius, told assembled diplomats in Lima, the best way to ensure success in Paris is to start with success in Lima. While few would characterise the Lima Call to Climate Action as a resounding success, the Lima decision does take tentative yet significant steps towards Paris, and thus represents tangible progress in the negotiations. That the Lima Conference was able to arrive at an outcome, however weak, is in itself remarkable, given many countries had come to Lima determined not to foreclose options for themselves in the 2015 agreement, even if it came at the cost of failure in Lima.

Durban to Lima and Beyond

The international climate change regime consists principally of the 1992 United Nations Framework Convention on Climate Change (UNFCCC),1 the 1997 Kyoto Protocol2 and the decisions of Parties to the UNFCCC (hereafter the parties) under these instruments. Although these instruments are important first steps towards addressing climate change and its impacts, they are widely regarded as inadequate and inadequately implemented. At the Durban Conference 2011, the Parties launched a process to negotiate a climate agreement that will come into effect and be implemented from 2020.3 This process, christened the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), is intended to craft the agreement that will govern, regulate and incentivise the next generation of climate actions. The ADP process is expected to conclude its work and yield agreement by 2015.4 The international community has, since Durban, engaged in intense negotiations, both in the context of this process and in other complementary plurilateral and multilateral fora, to inform and design an agreement that builds on, complements and may even replace part of the existing climate change regime. To assist them in meeting the 2015 deadline and managing their negotiating time, the Parties decided at the Doha Conference, 2012 to erect milestones along the way. Parties agreed to consider elements for a draft negotiating text no later than the Lima Conference 2014, with a view to making available a negotiating text before May 2015.5

At the Warsaw Conference in 2013, the Parties were invited to prepare and submit intended nationally determined contributions in 2015. The ADP was also mandated to identify...the information that Parties will provide when putting forward their contributions.6 These two outcomes resulted from the general agreement between the Parties that they needed to engage in 2014 in the domestic preparations necessary to arrive at commitments that can be inscribed in the 2015 agreement or be part of the 2015 package. This was deemed necessary not just to arrive at realistic and realisable commitments but also to generate ownership of and responsibility for them. There was also general agreement that these commitments would need to be accompanied by information sufficient to generate clarity about the nature, type and stringency of the commitments, such that it would assist in comparability across commitments and assessments of adequacy.

Lima Deliverables

There were thus two key deliverables for the Lima Conference: countries were tasked with arriving at the elements of a draft negotiating text for the 2015 agreement; and, the ADP was tasked with identifying the information that must accompany the intended nationally determined contributions the Parties would submit in 2015.

In the course of the negotiations through 2014, however, it became clear that the carefully negotiated language of the Warsaw decision raised two further sets of issues that would also need to be addressed before countries submitted their contributions. The first set of issues relates to the scope of the intended nationally determined contributions. The Warsaw decision left it unclear whether contributions would only cover mitigation or also adaptation, finance, technology and capacity building. Whether mitigation would be a compulsory or optional component of a Partys contribution? Whether the Parties could submit conditional contributions conditioned on the provision of support or on action by other parties or only unconditional ones? The second set of issues relates to the possibility of an ex ante assessment process that would apply to these contributions once they are submitted. The Warsaw decision contained no explicit reference and thus only the flimsiest of hooks for such an ex ante assessment process. The use of the word intended suggests that the nationally determined contributions of the Parties are expected to be provisional in that it may not be a Partys eventual contribution inscribed in the 2015 agreement. This created two possibilities that the intended contribution could be revised by the Party itself, or as a result of a multilateral assessment process. Countries expressed a range of views through the ADP sessions in 2014 on the establishment of an ex ante assessment process. Therefore, in addition to the two mandated deliverables for Lima, the Lima Conference also had to address itself to issues of scope and assessment in relation to the parties intended nationally determined contributions.

The Lima Call to Climate Action

The Elements Text for the 2015 Agreement: On the first of the Lima deliverables arriving at the elements of a draft negotiating text for the 2015 agreement Lima proved successful. Parties did arrive at an elements text, albeit a 38-page text littered with options and alternatives with little of it representing agreed language.7 The Parties read through the co-chairs non-paper that had attempted a structured exposition of the views of countries,8 and sought to introduce options reflecting further views. The co-chairs produced two versions of the text through the course of the two weeks to reflect these inputs from the Parties, and in the process the co-chairs non-paper transitioned seamlessly into the elements text that reflected qualified ownership from the Parties. Needless to say, many countries were nervous about the status of this text, and some expressed the view that this text should not be appended to the Lima decision. But this was not the dominant view. Most countries wanted a firm basis for negotiations next year, and accepted the text with the addition of a comforting footnote indicating that these elements reflect work in progress and neither indicate convergence on the proposals presented nor do they preclude new proposals from emerging in the course of the negotiations in 2015.9 Notwithstanding the many disagreements captured in the range of options in the elements text, it puts in place the broad structure, scope and contours of the 2015 agreement, and countries will begin negotiating in earnest on the basis of this text in 2015.

Scope of Contributions: The second of the Lima deliverables identifying information to accompany countries intended nationally determined contributions proved harder to deliver, and the Lima decision provides only limited guidance to states as they prepare to submit their contributions next year. The issue of accompanying information is inextricably linked to the issue of scope as different types of contributions would require the submission of different types of information. There proved to be irreconcilable differences on the issue of scope. There were a range of views cutting across north-south lines, with some states insisting that contributions should only cover mitigation, and others arguing that mitigation and adaptation should be accorded legal and material parity. In addition, many developing countries, including India, argued that if they were required to submit mitigation contributions which they had been insulated from thus far in the climate regime there must be a corresponding increase in the provision of technical and financial support. This, in their view, could best be secured by requiring developed countries to submit contributions on finance. Needless to say, this proved difficult to secure. The Lima outcome therefore merely repeats Warsaw language inviting the Parties to communicate their intended nationally determined contributions. In effect, this leaves the scope of contributions to national determination. This, in turn, implies that states can choose not just which contributions to submit, but also whether to submit adaptation contributions in lieu of mitigation ones. This also leaves open the possibility that states could submit contributions that are conditional on the provision of support. The Lima decision encourages countries to consider including an adaptation component in their contributions (Lima Call for Climate Action, para 12), but is conspicuously silent on a financial component.

There are, however, two general reassurances provided in the initial paragraphs of the decision relating to the treatment of issues other than mitigation. First that the 2015 agreement will address mitigation, adaptation, finance, technology development and transfer, capacity building, and transparency of action and support, in a balanced manner (Call for Climate Action, para 3). And, second, urging developed countries to provide and mobilise enhanced financial support for ambitious mitigation and adaptation actions in developing countries (Call for Climate Action, para 4). It is unclear whether the reassurance on finance, however, merely underscores existing developed country commitments (for the pre-2020 period) or signals that such developed country financial commitments will continue in the 2015 agreement (for the post-2020 period). It is worth keeping in mind that the Lima Conference took place in the immediate aftermath of the initial capitalisation of the Green Climate Fund, which resulted in raising $10 billion. While developed countries cited this as an example of their financial commitment, developing countries noted that this was only a fraction of the developed country Copenhagen pledge to mobilise $100 billion per year by 2020.

Informational Requirements for Contributions: Given the half-hearted resolution of the scope issue, the Lima decision could not have provided detailed guidance on the information that must accompany the parties contributions. The Lima outcome therefore listed, albeit in a non-prescriptive manner, the types of information to be provided by countries while communicating their contributions. This includes information relating to the base year, time frames, scope and coverage, assumptions and methodologies, and information that speaks to how a state considers its contribution to be fair and ambitious, in light of its national circumstances, and how it contributes towards achieving the objective of the Convention in Article 2 (Call for Climate Action, para 14). It is hoped that the provision of such detailed information will facilitate clarity, transparency and understanding, and comparability between different countries contributions. Although the language used in relation to the provision of such information is may include, as appropriate, inter alia, it is nevertheless an advance on the non-existent informational requirements that the Cancun pledges were subject to. In addition, information countries offer on the fairness and ambition of their contributions may provide a basis for assessing a countrys contribution. It does signal, however, that equity and adequacy assessments have also been left to national determination, with all the inherent subjectivity and self-serving narratives such a system will elicit.

Ex Ante Assessment Process: The failure to reach agreement on a multilateral ex ante assessment process bolsters this point. The European Union and many developing countries, including the Africa Group, least developed countries and Small Island developing states, had argued for a robust ex ante assessment process to be applied to the contributions of the Parties to consider whether the contributions add up to what is adequate to meet the 2C temperature goal, and is equitable in light of the capabilities and responsibilities of the country in question. China and India however argued vigorously against such an assessment process. They argued that there was no hook for such a process in the Warsaw decision, and that an ex ante assessment process would curb rather than encourage ambitious national actions. Others argued that without such a process there would be no multilateral (top-down) assessment of nationally determined (bottom-up) contributions. And, indeed it would let developed countries off the hook. China and India ultimately held sway, and nationally determined contributions submitted in 2015 will not be subject to an ex ante assessment process.

All that remains of the ex ante assessment process is a request to the UNFCCC secretariat to prepare a synthesis report on the aggregate effect of the intended nationally determined contributions (Call for Climate Action, para 16). This report will focus on the aggregate effect and will not therefore identify individual countries whose contributions may not pass muster. There was a proposal that the synthesis report also considers the equity of individual contributions, but this did not gain favour with many countries. Although there will be no ex ante assessment of the parties contributions in 2015, it is worth noting that this does not preclude such a process from being included in the 2015 agreement. Should countries wish to do so, they could negotiate an ex ante process for future contribution cycles, and/or an ex post review for this and future contribution cycles. The Lima decision specifies that the arrangements it has arrived at on intended nationally determined contributions are without prejudice to the legal nature and content of the 2015 agreement (Lima Call for Climate Action, para 8). This is the reassurance provided to countries like South Africa who were concerned that weak arrangements in relation to the intended contributions in 2015 occasioned by limited negotiating time and/or hostile political conditions would impact the 2015 agreement that would have a longer life.

No Back-sliding: In addition to guidance on informational requirements, the Lima decision also provides guidance to the Parties in relation to the ambition of their contributions. The Lima decision requires each states contribution to represent a progression beyond the current undertaking of that Party (Lima Call for Climate Action, para 10). There was broad support for this provision that captures the notion that has come to be characterised in the negotiations as no-backsliding. Many developing countries advocated it as a way to ensure that developed countries did not take on commitments less rigorous than their Kyoto commitments. It also forms the basis for Brazils concentric differentiation approach that envisions gradual progression towards more ambitious type and scale of commitments over time for all countries.10 This provision is of tremendous significance in the Lima decision, as it will ensure both that the regime as a whole is moving towards ever more ambitious and rigorous contributions from countries that there is a direction of travel for the regime, as it were. It will also ensure there will be continuing differentiation in the near future, since developed and developing countries, given the current balance of responsibilities in the UNFCCC and Kyoto Protocol, are at different starting points.

Differentiation: A Truce? Finally, the Lima decision is intriguing for the seeming truce states arrived at, albeit temporary, on the vexing question of differentiation between developed and developing countries in relation to the nature and form of commitments countries will have under the climate regime. Although few believed this issue would be resolved before the last night in Paris, many were keen to ensure that the outcomes in Lima were not loaded either for or against differentiation in the 2015 agreement. Thus this issue was raised and discussed through the two weeks of the negotiations. Admittedly, there has been a gradual erosion of differentiation in the climate regime in the last few years. The Durban Platform that launched the negotiating process towards the 2015 agreement contains no reference to common but differentiated responsibility, a central organising principle in the climate regime thus far. The Doha and Warsaw decisions contained a general reference to principles of the UNFCCC, but no specific reference to the principle of common but differentiated responsibilities. Developing countries were keen to rehabilitate this principle and in Lima arguably they recorded modest gains. The principle of common but differentiated responsibilities features in an operational provision of the Lima decision, but it is qualified by the clause in light of different national circumstances. This language is identical to the language that appears in the US-China climate deal of 12 November.11 In addition to signalling the pivotal role these countries play in the climate negotiations, it also arguably represents a shift in the interpretation of this principle in its application to the 2015 agreement. Developing countries have consistently argued that this principle has no evolutionary or dynamic element to it. However, the qualification of the principle by a reference to national circumstances introduces a dynamic element to the interpretation of the principle. As national circumstances evolve, so too will the common but differentiated responsibilities of states. This language accommodates the interests of the developing world insofar as it ensures that the 2015 agreement will be built on common but differentiated responsibilities, but also the interests of the developed world that favours an evolutionary interpretation to this principle that accounts for the rapid growth in the economies of many developing countries since 1992.

Conclusions

The Lima Call to Climate Action did deliver, albeit in a less robust manner than some had hoped for, on the tasks that had been set for the Lima conference. It delivered an elements text on the basis of which negotiations will proceed in 2015, as well as provided guidance to countries in preparing their intended nationally determined contributions in 2015. Although its victories are modest and the agreements tentative, given the deep and enduring differences that plague the climate negotiations, the Lima Call to Climate Action represents progress, and will stand countries in good stead as the drum roll for Paris begins.

Notes

1 United Nations Framework Convention on Climate Change (adopted 29 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (FCCC).

2 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 10 December 1997, entered into force 16 February 2005) FCCC/CP/1997/7/Add.1 (Kyoto Protocol).

3 UNFCCC, Decision 1/CP.17 Establishment of an Ad Hoc Working Group on a Durban Platform for Enhanced Action, 2011 (15 March 2012) FCCC/CP/2011/9/Add.1 (Durban Platform).

4 Durban Platform, para 4.

5 UNFCCC, Decision 2/CP.18 Advancing the Durban Platform (28 February 2013) FCCC/CP/2012/8/Add.1 (Doha ADP decision) para 9.

6 UNFCCC, Decision 1/CP.19 Further Advancing the Durban Platform, 2013 (31 January 2014) FCCC/CP/2013/10/Add.1 (Warsaw ADP decision), para 2.

7 FCCC, Decision _/CP.20, Lima Call for Climate Action, advance unedited version, available at: http://unfccc.int/files/meetings/lima_dec_2014/application/pdf/auv_cop20_lima_call_for_climate_action.pdf (Lima Call for Climate Action).

8 FCCC, Non-paper on Elements for a Draft Negotiating Text, Updated Non-paper on Parties views and proposals (11 November 2014) ADP.2014. 11.NonPaper, available at: http://unfccc.int/resource/docs/2014/adp2/eng/ 11nonpap.pdf

9 FCCC, Elements for a Draft Negotiating Text (version 2 of 10 December 2014), available at: http://unfccc.int/files/meetings/lima_dec_ 2014/in-session/application/pdf/adp2-7_3_ 10dec2014t_np.pdf

10 See Views of Brazil on the Elements of a New Agreement Under the Convention Applicable to All Parties, 6 November 2014, available at: http://unfccc.int/documentation/submissions _from_parties/items/5900.php

11 US-China Joint Announcement on Climate Change, Beijing, China, 12 November 2014, para 2, available at: http://www.whitehouse.gov/the-press-office/2014/11/11/us-china-joint -announcement-climate-change

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