November 2016. Climate Law & Policy and Lexis PSL

COP22_Climate_Conference_Interview.pngEnvironment analysis: Daniela Rey Christen, founding director of Climate Law and Policy, and Sebastien Korwin, the organisation's legal and policy advisor, argue that there is still a considerable amount of work to define the specific rules and guidance necessary to implement the Paris Agreement and therefore the Conference of the Parties (COP) 22 will focus on making progress towards the development of these rules and guidance.

What is the purpose of the COP and what is likely to be on the agenda at COP 22?

The COP is the supreme body of the UN Framework Convention on Climate Change (UNFCCC) (as set out in UNFCCC, art 7). Its mandate is to 'keep under regular review the implementation of the Convention and any related legal instruments that the Conference of the Parties may adopt' and to 'make, within its mandate, the decisions necessary to promote the effective implementation of the Convention.'

The negotiations in Marrakesh will focus on numerous issues, including:

  • enhanced action prior to 2020
  • the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts
  • development and transfer of technologies
  • matters relating to finance (long-term climate finance and matters related to the functioning of the Green Climate Fund)
  • the implementation of the Paris Agreement--key issues that will be discussed under this include:
  • the contents of nationally determined contributions (NDC)
  • the type of information to be contained in the adaptation communications
  • the modalities and rules for cooperative mechanisms (sustainable development mechanism)
  • modalities of the global stocktake and preparation for the facilitative dialogue in 2018, and
  • the transparency framework (reporting)

What preparations have been made for the entry into force of the Paris Agreement, which was agreed at COP 21?

Article 21 of the Paris Agreement states that it shall enter into force on the thirtieth day after the date on which at least 55 parties to UNFCCC, accounting in total for at least an estimated 55% of the total global greenhouse gas emissions, have deposited their instruments of ratification, acceptance, approval or accession.

On 21 September 2016, representatives of 31 countries deposited their instruments of ratification, at which point the first requirement that 55 parties to the UNFCCC should ratify the Paris Agreement for it to enter into force, had been met.

At the beginning of October 2016, additional parties deposited their instrument of ratification, starting with India on 2 October 2016, the EU on 5 October 2016 and Canada. Following this, the second threshold--the emissions threshold--was met, triggering the entry into force of the Agreement 30 days thereafter, on 4 November 2016.

How does COP 22 compare with COP 21? What similarities and differences will there be with regards to expected outcomes?

At COP 21, parties to the UNFCCC were able to adopt an international agreement which is widely seen as a milestone in the global endeavour to respond to climate change. The Paris Agreement constitutes a universal and binding agreement with specific long-term goals.

Although the Paris Agreement enters into force on 4 November 2016, the Agreement only contains the broad framework to guide country efforts, and there is still a considerable amount of work to define the specific rules and guidance necessary to implement it (and to report on its implementation). COP 22 will therefore be focused on making progress towards the development of these rules and guidance.

In 2016, a dedicated working group on the Paris Agreement was established, which met in May 2016 and will do so again at the COP in Marrakesh in November 2016.

What is the significance of the Global Climate Action (GCA) Roadmap?

At COP 21, 'Climate Champions' Laurence Tubiana, French Ambassador for Climate Change, and Hakima El Haité, Minister Delegate in charge of the Environment to the Ministry of Energy, Mines, Water and the Environment of Morocco,adopted a GCA Agenda to boost cooperative action among governments, cities, businesses, investors and citizens to reduce emissions and help vulnerable countries adapt to climate impacts.

The two champions have also released a GCA Roadmap for the Agenda and launched a consultative process to seek views of governments and other stakeholders on their vision. The Agenda also features a calendar of events to be held ahead of COP 22.

The GCA Roadmap offers a unique opportunity to help mobilise support for further action from not only parties, but also from non-party stakeholders, thereby promoting private sector engagement and voluntary initiatives. The GCA Agenda and Roadmap provide a bridge and a connection between the UNFCCC and the many voluntary and collaborative actions needed to achieve the goals of the Paris Agreement.

How can resources of implementation be made available to effectively support the implementation of the Paris Agreement?

Capacity building had in the past been another low-profile element of the UN climate regime's support structure. While developed countries had always recognised capacity building to be an essential element of the Paris Agreement, developing countries had never managed to bring the issue on top of the agenda. Consistent progress had been made over the past years, with the Durban Forum on Capacity-Building, a multi-stakeholder forum for sharing ideas and lessons learned, being the most visible outcome in 2011.

The Paris Agreement finally recognises the importance of the issue, and sets out the Paris Committee on Capacity Building (PCCB), to ensure that all countries can meet their commitments. The PCCB will oversee a four-year work plan,starting in 2016, to address gaps and needs, and ensure coordination of efforts in capacity-building activities in developing countries. The Subsidiary Body for Implementation (SBI) will develop the terms of reference for the PCCB, with the expectation that parties will formally adopt them at COP 22.

In terms of the way forward, the PCCB will follow a work plan in the period of 2016-20, with a number of different issues related to the existing capacity building framework under the UNFCCC, as well as capacity gaps that should be addressed by parties. Each year, the PCCB will focus on a special topic, and hold annual in-session meetings where these areas can be addressed. The SBI is tasked to develop terms of reference for the newly-established body to be approved by COP 22 in 2016.

Concerning technology transfer and development, the Paris Agreement provides a long-term vision for developing new technologies and enabling the transfer of these technologies from the developed to the developing world in order to help nations mitigate and adapt to climate change. Ahead of the first meeting of the Parties, the Subsidiary Body for Scientific and Technological Advice must lay out the details of a framework to support this goal.

A key condition for successful implementation of the Paris Agreement is the provision of adequate and sustainable financial support for capacity building and technology and transfer. This will enable developing countries to significantly strengthen or scale up their efforts to build robust domestic and international measurement, tracking, reporting and verification systems, as well as more robust domestic and regulatory processes.

Various initiatives have been established since the Paris climate negotiations to build this capacity. The US, Canada and the UK have already pledged about $35m to the Capacity Building Initiative for Transparency, established under the Paris Agreement, through the Global Environment Facility. In addition, the Children's Investment Fund Foundation (CIFF),Germany, Italy and the ClimateWorks Foundation have pledged $16m to the Initiative for Climate Action Transparency,which works to provide policymakers around the world with tools and support to measure and assess the effects of their climate actions.

What impact will Brexit have on COP 21, the Paris Agreement and the UK's input to COP 22?

In international climate change negotiations, common EU positions are agreed upon in advance by the Member States, with the participation the Commission. The country holding the Presidency of the EU, a position that rotates every six 3 months, coordinates the members and presents the EU position at the international negotiations (see S Oberthur and H Ott (1999) The Kyoto Protocol: International Climate Policy for the 21st Century).

Although not explicitly stated in Article 50 of the Treaty on European Union, it would appear that until the exit negotiations are completed, the UK is still a full Member State, and as such should follow the current negotiating conventions, meaning that for COP 22 at least, it follows the common EU position.

Ahead of COP 21, the EU, on behalf of all its Member States (including the UK), submitted its Intended Nationally Determined Contribution commitment (INDC) which sets out its ambition for 2030 of achieving 'at least 40% domestic reduction in greenhouse gas emissions by 2030 compared to 1990'. This INDC became an NDC (without 'intended') following the ratification of the Paris Agreement by the EU.

The Paris Agreement has specific provisions for the joint fulfilment of objectives by Member States of 'regional economic integration organisations', which are also parties to the Paris Agreement (eg the EU)--see the Paris Agreement, art 4,paras 16-18. Under such provision, the EU is required to notify the UNFCCC of the emissions level allocated to each party. In order for this to be achieved, there needs to be agreement on the individual Member State targets.

Given that the EU INDC became an official commitment at the time of ratification, it is perfectly feasible for the UK to decide to complete the commitment period based on the Member State target that is to be negotiated internally within the EU. In addition, the EU's (and therefore the UK's) commitment period is up to 2030, which means that the UK and the EU would be bound by the targets set in this commitment up to 2030, and afterwards could go their own way. That said, each Member State's legislature also needs to ratify the Paris Agreement, though it is unlikely that the UK parliament would refuse to do so.


Daniela Rey Christen is an international environmental lawyer with over 12 years' experience in policy and legal development and strengthening in the areas of climate change, forest governance, REDD+, human rights and procedural rights. Daniela currently serves as a senior consultant for the UN Institute for Training and Research, and supports the conceptualisation and delivery of innovative climate change training materials.

Sebastien Korwin is an environmental lawyer working on international environmental policy and law in the areas of climate change, biodiversity, forest governance, REDD+ and human rights.

Climate Law and Policy is an independent advisory organisation that helps design, implement and sustain environmental governance advancements.

Interviewed by Kate Beaumont.

This article was first published on Lexis®PSL Environment analysis on 3 November 2016.