The Paris Package: Is a Binding Climate Deal Closer?

The United Nations Food & Agricultural Organisation (FAO)’s Global Information & Early Warning System predicts a high risk of drought in the main agricultural areas of Ethiopia, Kenya, Somalia and Tanzania in the coming months. Scientists are also warning El-Niño could cause drought and famine in West Africa.

The reports are in line with the predictions of the Intergovernmental Panel on Climate Change (IPCC) Fifth Assessment report published in 2014. The assessment has outlined that all aspects of food security will potentially be affected by climate change, including food production, access, utilisation and price stability, impacting the daily lives and livelihoods of individuals worsening the situation of developing countries.

In an attempt to reach a new agreement to reduce the impacts of climate change and curb emissions, countries are negotiating a new deal on climate for the post-2020 period. This new international agreement will be adopted at the next Conference of Parties (COP-21) to be held in Paris, France, in December. However, the negotiations for reaching a new international climate agreement under the United Nations Framework Convention on Climate Change (UNFCCC) have been criticised for being too political rather than responding to such urgent needs.

So far, the negotiations have centred their attention on the content of the agreement, deferring on its legal form. With less than five months for adoption of the agreement by countries, the legal form of the new international climate agreement is yet to be discussed.

Legal form establishes the status of the rules and responsibilities of countries in international law. Since the launch of negotiations for the new climate agreement under the UNFCCC in 2011, apart from setting out that the agreement could have the form of ‘a protocol’ another legal instrument or an agreed outcome with legal force under the convention, no further specifications as to what is intended or covered by each of these options have been agreed.

As the Paris gathering approaches, the legal form question needs to be addressed ensuring the agreement responds to urgency of climate change that is felt by countries. East and West Africa are at risk from drought and famine affecting the livelihood of their populations. Reports also forecast heavy rainfall and flooding in Asia. Such impacts are also projected to slow down economic growth. Therefore, clarity about the contours and instruments compounding these three options is paramount; more so as the outcome in Paris is likely to be a ‘package’, comprising not one, but a combination of instruments of different legal character.

At present, many parties seem to be in favour of a ‘mix bag’ outcome, comprising instruments of different legal form; in other words, a ‘package’. This would be formed by a core agreement (possibly, a legally binding ‘protocol’) accompanied by implementing decisions. It is also expected that agreements will have annexes forming an integral part of the agreement and political declarations on climate.

For many countries, a ‘protocol’ under the UNFCCC Convention, is indeed the preferred outcome. As countries would be required to manifest their consent to be bound through the highest form of political will in which their governments express their consent to act through instruments like ratification.

Under such a legally binding treaty, countries’ climate actions will not be voluntary and countries will be bound by their commitments. Thus, some parties have argued against a protocol as it poses risks and limitations taking into account the cost of stringent and enforceable commitments that leads to failing to secure ambitious and universal agreement on climate change. Such approach is among the reasons the US never ratified the Kyoto Protocol to the UNFCCC, and Canada, Japan and Russia withdrew from the second commitment period of the Kyoto Protocol.

The other possibility for the legal form is ‘another legal instrument’ under the Convention, which includes legal instruments such as amendments and annexes. Amendments to the UNFCCC have been proposed by few countries. The legal procedure for amendment, three-quarters majority vote of Parties to UNFCCC and six months rule for deposition of acceptance instruments was not pursued by the proposing countries making ‘amendments’ off the table to be the legal form of the Paris package.

An Annex to the agreement is the other option under this legal form which is still on the table and negotiated by countries. Annexes could form an integral part of the agreement as long as they have restricted content to lists, forms and any other material of a descriptive nature that is of a scientific, technical, procedural or administrative character.

Countries have been voluntarily submitting their climate action following the invitation extended to all countries for communicating their intended nationally determined contributions (INDCs) for addressing climate change. These submissions from countries can qualify to be annexes to the Paris package; this is pursued by negotiating groups like the European Union. Until now, 55 countries have officially submitted their nationally determined contributions to show their political will and commitment on climate change.

Some have argued voluntary contributions leading to a climate deal, which is a bottom-up approach, will deliver an ambitious agreement in 2015. However, for countries, that argue the Paris package should deliver not only commitments to curb causes of climate change and as such annex will not suffice. As the contributions do not provide for commitments on financial, technology and capacity building support for developing countries to address the impacts of climate change like the current drought and famine in African countries, they fall short of achieving one of the objectives of a climate deal. But assurances of this objective in the other options of the legal forms from EU may lead to the annexes forming the integral part of the Paris package.

The final legal form option for the Paris package is ‘an agreed outcome with legal force under the Convention.’ This option can enable the Paris package to endorse decisions that will promote the effective implementation of the UNFCCC Convention. This option can also enable all countries or sub-set of countries to arrive at political declarations. Political declarations can give political will and assurances for taking action on climate change. Some countries are concerned on the legal standing of this option as ‘with legal force’ signals something less stringent than ‘legally binding’, intending to offer an option that is clearly softer. Thus, owning to the fact that decisions and political declarations are soft law instruments with no formal legal standing, uncertainty remains as to their strength and actual effect.

In the upcoming negotiating Session of the Paris package from August 31 to September 4, countries have five days for accelerating negotiations and producing a clear understanding of the Paris package and its legal form. This will be the last session before the October session, which will be the last one before COP-21.

Therefore, the upcoming session is an important session especially for African countries that are currently experiencing the impacts of climate change more than in previous years. The technical negotiators from these countries need to examine the content of the “Paris Package” as obligations from the agreement can have one or a combination of many outcomes.

The package could include obligation of efforts from countries in the form of only designing policies and measures on climate change, and (or) obligation of result from countries with targets on reducing gases that cause climate change, providing finance, technology or capacity for bearing the impact of climate change as well as  procedural obligations for compliance and reporting. The urgency for addressing the impacts of climate change calls a cumulative of all these obligations to be included in Paris package.

Thus, ensuring the Paris package is adopted by the end of this year, will deliver for the parties by reducing gases causing climate change, allowing ecosystems to adapt to climate change, providing support for addressing the impacts of climate change, thereby guaranteeing that food security is not threatened and enabling economic development to proceed in a sustainable manner.

By Selam Kidane
Environmental lawyer

Published on Aug 24,2015 [ Vol 16 ,No 799]



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