THE 20th Conference of the Parties (COP 20) to the United Nations Framework Convention on Climate Change (UNFCCC), held during December 1-12, 2014, in the Peruvian capital of Lima, not unexpectedly delivered precious little in terms of safeguarding the world from the disastrous consequences of severe climate change. The Lima climate summit was expected to come out with the basic architecture for a globally binding agreement to tackle climate change to be arrived at COP 21 in December 2015 in Paris.
The main aim of this agreement —which will be a “protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties”, to quote the strange phraseology used by the decision of COP 17 (2011) in Durban—is to limit carbon emissions from all countries so as to prevent the globe from breaching the guardrail temperature increase of 2° Celsius by the turn of the century, a limit arrived at in the Cancun summit in 2010. If there was any misplaced hope at all that Lima would come up with a satisfactory legal structure to achieve this goal, it was belied. According to the mandate of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), which is entrusted with the task of arriving at the new agreement, the Paris Accord will enter into force in 2020.
The phrase “another legal instrument” (italicised above) is a reference to the only binding international treaty that has hitherto been in place, that is, the Kyoto Protocol. It was formulated in 1997 and it entered into force in 2005, and its architecture is based firmly on the fundamental tenets of the UNFCCC, namely:
“The largest share of historical and current global emissions of greenhouse gases [GHGs] has originated in developed countries, that per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs” (in the preamble); and
“The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities (CBDR-RC). Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.” (Article 3.1)
Accordingly, the Kyoto Protocol divided member states into Annex 1 (developed) and non-Annex 1 (developing) countries, with the former required to take on binding carbon emission reduction commitments with respect to 1990 emission levels. The first commitment period ran up to 2012, but many countries failed to meet their respective targets except for those in the European Union (E.U.), which probably overachieved its target. COP 18 in 2012 recommended a second commitment period up to 2020 (the so-called Doha Amendment), which imposed a second round of binding reduction targets on 37 countries. The second commitment period was to ensure emission pathways in the pre-2020 phase before the Paris agreement came into force so that the 2° C goal could be attained.
However, with the United States, a major carbon emitter which has consistently rejected legally binding commitments and was never a party to the Kyoto Protocol, and several other developed countries now unwilling to ratify these new commitments, the protocol framework stands virtually dismantled. In essence, developed countries do not wish to accept their historical responsibility of being the major cause of the present global warming and are against this differentiated emission reduction targets mandated by the protocol. That is, they would prefer a framework that focusses on limiting present carbon “flows” in an undifferentiated manner and ignores the carbon “stock” in the atmosphere for which they are responsible.
New phraseologyTherefore, for all practical purposes, the parallel exercise at climate summits to arrive at further commitments for Annex 1 countries has lost all its meaning. At Lima, too, there was not much headway on this front, and the protocol hangs in limbo today. To date, only 23 countries, none of them developed, have ratified the Doha Amendment; a total of 144 ratifications are required for it to enter into force. In effect, developed countries’ rejection of the Kyoto Protocol means that the differentiating firewall between developed and developing countries is slowly being knocked down and the concept of equity is being given the go by, thereby eroding the fundamental principles of the UNFCCC. Indeed, some new phraseology that is not in the UNFCCC text found its way into the final outcome document at Lima, which is indicative of developed countries’ growing attempt to dilute the ethical principles that form the cornerstones of the convention.
Since the insidious introduction of this phraseology by the U.S. into the UNFCCC process at COP 15 in 2009 in Copenhagen—a watershed in climate negotiations which steered the talks (thanks to the U.S.’ back-room manoeuvres) towards the currently evident rapid downward slide—a bottom-up “pledge and review” approach to mitigation commitments, based on voluntary emission reduction pledges put on the table by countries, has totally displaced the top-down legally mandated approach a la the Kyoto Protocol, which was based on the principles of the convention and on what science says about emission pathways that the world needs to adopt to avoid exceeding the 2° C temperature rise limit. In fact, it has become the centrepiece of climate talks today, and there is now a new phrase for it in the negotiations glossary. It is known as “intended nationally determined contributions (INDCs)”, a term that was adopted in 2013 at COP 19 in Warsaw, with the Kyoto process being left to die slowly.
The INDCs form the core mitigation element in the draft text for the Paris negotiations too and the final 2015 agreement is likely to be largely INDC-centric. It is not at all clear how the principles of equity and CBDR can be built into a pledges-centric and a bottom-up-approach-driven agreement. As has become the norm since Copenhagen, in Lima, too, the final conference outcome document, which is essentially the final draft text for the Paris agreement, came about 40 hours beyond the conference’s scheduled closing date. There was the usual share of acrimonious debates and high drama, which only resulted in a weak compromise document. At 1 a.m. on December 14, COP 20 adopted the five-page “Lima Call for Climate Action” appended with a 38-page draft text as its annex that is under negotiation.
This final document was the result of several iterations of a draft before the Parties gave their consent. The December 12 version of the draft—which was prepared by the ADP co-chairs, Artur Runge-Metzger (of the E.U.) and Kishan Kumarsingh (of Trinidad and Tobago), under the guidance of COP 20 president Manuel Pulgar-Vidal, the Peruvian Minister of Environment—was rejected outright by several developing countries. They said that it was unbalanced and did not incorporate their views and that there still were unresolved issues on which the Parties had serious differences. Among the key issues that were missing from the draft was the aspect of differentiation and equity as enshrined in the UNFCCC.
Other contentious issues that had remained unaddressed were the issue of financing for the post-2020 period; disagreement over the scope of INDCs; failure to include the issue of the “international mechanism for loss and damage” to poor and vulnerable countries due to climate change, which was mandated by a decision at COP 19; and very weak pre-2020 climate action commitments. The draft text was viewed as being biased towards developed countries’ positions. While developed countries wanted the co-chairs’ text to be approved, developing countries sought the intervention of the president to restore balance to the text and to ensure it reflected the views they had expressed during the negotiations. Pulgar-Vidal held several closed-door consultations with country groups through December 13 to find out what the red lines were and what elements were acceptable to developing countries.
All along, developed countries wanted the scope of INDCs to be restricted to mitigation. Developing countries, on the other hand, wanted the INDCs to include the related elements of financial contributions and technology transfer to assist them in their mitigation and adaptation actions in the post-2020 period. The Warsaw COP had only called for all the Parties to communicate their INDCs well in advance of COP 21 without prescribing the scope or nature of the “contributions”, whether these related to mitigation, adaptation, finance, technology transfer or capacity building. Developing countries argued that by focussing only on mitigation, developed countries were pre-judging the nature of the 2015 agreement in a bid to make it mitigation-centric.
In a similar vein, developed countries also proposed a system for an ex ante assessment and review of the INDCs by mid-2015 to see whether the mitigation contributions added up would limit the temperature rise to below 2° C. For instance, in its submission on elements of mitigation in the 2015 agreement, the E.U. had proposed that a process be evolved before COP 21 that was designed to ensure that the collective level of ambition (all the INDCs together) brought the world closer to the below 2° C goal. The E.U. also wanted the 2015 agreement to have a mechanism that allowed a revisit of the collective mitigation potential.
But these proposals were rejected by developing countries. They argued that an ex ante assessment ahead of Paris was beyond the Warsaw Mandate and also that such a system would be prejudicial to the negotiations for the 2015 agreement, especially with regard to the agreement’s mitigation component and to how the principle of CBDR and equity would be applied to all elements of the Paris agreement, including that relating to the individual INDCs. It was argued that such an assessment might result in the developing countries being brought under pressure to enhance their commitments, whereas there was no assessment or even information on the financial and technological support that developed countries needed to provide. They argued that that their mitigation potential was linked to financing and technology transfer, which remained unclear in a mitigation-centric INDC approach.
Following these meetings of the COP president, a plenary was convened at midnight on December 13-14, when Pulgar-Vidal gavelled the decision that passed without any objection. The final document was seen as being more balanced, the CBDR principle was restored, a reference to “loss and damage” was included, and the INDCs were no longer mitigation-centric, with climate action plans of countries including elements of adaptation, financing and technology transfer. The principles of equity and CBDR now find their place in the preamble to the Lima document and in paragraph 3 of the decision.
Contentious paragraphsWhile there is general acceptance on the draft text’s broad elements, there is no universal agreement yet on its finer details, and the wordings of many of the paragraphs remain contentious, with as many as three alternatives given for virtually every paragraph. Much of the negotiation on thrashing out a consensual text has been left for the coming months before it is finalised in May 2015 to be placed for consideration/adoption in Paris.
The core elements included in the adopted text seem to have satisfied all the Parties, both developed and developing. That may appear to be a remarkable achievement given that at one point it had seemed that the summit might collapse. For instance, India’s Minister of Environment and Forests, Prakash Javadekar, who attended the Lima summit, was quoted as saying: “All our concerns have been addressed….We have got what we wanted.”
But this claimed victory may not be actually real if one looks at it carefully. Take for instance the issue of CBDR itself, the restoration of which the developing countries saw as a big victory. The principle has been incorporated in several places in the text with an extraneous phrase that was not there in the UNFCCC. For example, Decision 3 states: The COP “…Underscores its commitment to reaching an ambitious agreement in 2015 that reflects the principle of common but differentiated responsibilities and respective capabilities, in light of different national circumstances ” (emphasis added).
The italicised phrase leaves a lot of room for interpretation, and developed countries could cite it to their advantage, resulting in actions that are not commensurate with their differentiated responsibilities as developed countries. And this phrase is repeated in a number of places in the draft text and the alternatives the developed countries suggested. Interestingly, this expression has been taken straight out of the text of the U.S.-China agreement on mitigation actions announced in November 2014 on the sidelines of the Asia-Pacific Economic Cooperation (APEC) meeting in Beijing.
It is also fairly clear that while the emerging agreement is going to be centred on the INDCs (which, in the main, would include emission-reduction pledges), the Lima summit did not succeed in evolving an appropriate review mechanism for them. Those Parties who are “in a position to do so” are urged to submit their INDCs by the first quarter of 2015 (as required by the Warsaw Mandate) and others are requested to submit them as early as possible before October 1, 2015. The UNFCCC, in turn, will make public a synthesis report of the INDC submissions by November 1, 2015. An analysis of that will reveal whether the combined efforts will suffice to limit the temperature increase to below 2° C. But as of now, only a structure for the pledge part of the “pledge and review” is being evolved.
Of course, developing countries did have a point in rejecting the ex ante assessment and review process suggested by some Parties. But this has a flip side to it. Having tacitly accepted the move towards an INDC-centric global legal regime, developing countries will now be faced with a conundrum. If all the INDCs do not add up adequately and developed nations do not do enough to meet their historical responsibility, there is no mechanism to address that and enforce a correction.
The Lima summit was also expected to see some ambitious pledges of INDCs from the Parties, developed countries in particular, but that too was not to be. It was generally believed that the summit, coming against the backdrop of the much hyped U.S.-China declaration, would infuse some much-needed momentum to the ongoing pre-COP negotiations and trigger other countries, too, to make similar announcements on their intended domestic mitigation actions. But, perhaps, the initial hullabaloo gave way to the realisation that the U.S.-China agreement did not amount to much in terms of absolute emission reductions as required by science, in particular the Fifth Assessment Report (AR5) of the Intergovernmental Panel on Climate Change (IPCC).
Largest carbon emittersThe respective announcements of these two largest carbon emitters of the world, who account for nearly 44 per cent of global carbon emissions (China 27 per cent, the U.S. 17 percent), in fact, amount to only marginal improvements over their earlier stated positions, which will not have any substantive impact on the long-term prognosis of climate change. China announced that its absolute carbon emissions would “peak” around 2030 and that it would attempt to cap emissions even earlier. It also announced that it would achieve a 20 per cent share of its energy basket through renewable sources by that year. The U.S., on the other hand, declared that it would cut its emissions by 26-28 per cent by 2025 relative to 2005, which is more than what it declared in Copenhagen in 2009 and in Cancun in 2010.
This is based on what was legislated by the Congress through the Waxman-Markey provision in the U.S. Clean Energy and Security Act of 2009, which was emissions reduction by 17 per cent by 2020 compared with 2005. It has also stated that this could form the basis for an 80 per cent cut by 2050 compared with 2005 levels. The U.S. had also indicated that these revised targets would be its INDCs, which it would submit to the UNFCCC by March 2015. Similarly, China had announced an emissions intensity (ratio of emissions to gross domestic product) reduction—not a cut in absolute emissions—by 40-45 per cent by 2020 from 2005 levels.
A little reflection, however, would tell one that the proposed U.S. cut is not any significantly deeper than its earlier target. Assuming a linear rate of emission cuts, a 17 per cent cut by 2020 would amount to about a 25 per cent cut by 2025 in any case. Although the U.S. is not party to the Kyoto Protocol, the protocol had required a cut its emissions by 5.6 per cent by 2008 compared with 1990 levels. However, during this period U.S. emissions actually increased by 14 per cent. So compared with 1990 levels, the Waxman-Markey reductions effectively only amounted to 3 per cent and that too 12 years later. The current proposal actually means a 12-14 per cent reduction by 2025 compared with 1990 as the base year, which actually is woefully less than the 40 per cent cut by developed countries by 2020 called for by the IPCC and other climate change research groups. This is also significantly less than the target of 30 per cent reduction by 2020 from the 1990 levels set by the 28-member E.U.
China’s declaration of a peak year, to which it had been steadfastly opposed until a few years ago, is new. However, according to a 2011 study by the Lawrence Berkeley National Laboratory (LBNL), it is not a great improvement over business as usual, which itself would have resulted in a peaking between 2030 and 2035. Several Chinese studies, too, have suggested in the past that a peaking year of 2030 should be feasible but a target peaking year of 2020-2025 would be a much more ambitious goal and a significant one to achieve. More pertinently, the rate of increase towards the peak, when the decline would start, and the rate of decline have not been indicated. Already, the current per capita GHG emission level for China is about 6.5 tonnes of CO equivalent (compared with 17.6 tonnes for the U.S.), and according to estimates, it will be around 12-14 tonnes by the peaking year in 2030. The U.S. per capita emission around then will be similar, which is way above the two-tonne limit required to limit the average temperature increase to 2° C. The Chinese declaration does indicate a possible earlier peaking year, and one has to wait until China announces its INDCs to see whether they are more ambitious than indicated in the bilateral deal.
Given its track record, one can expect the E.U.’s declaration of its INDCs, which is also likely to happen by March 2015, to be reasonable. The indications from other countries such as Japan (whose emissions are likely to significantly increase because of Fukushima), Australia and Canada, whose target is aligned with the 17 per cent reduction target of the U.S., are, however, hardly encouraging. India, too, has stated that it is working on appropriate INDCs, which it will submit to the UNFCCC sometime this year, and there are reports that India may also make a bilateral announcement with the U.S. during President Barack Obama’s forthcoming visit.
Only symbolic successIn the ultimate analysis, however, the apparent success of the Lima summit from developing countries’ perspective is only symbolic. What they have achieved is to get the original draft text improved only in form but not in substance. While they may pat themselves on the back for having managed to restore the principles of CBDR and equity in the draft text, they must be faulted for not coming up with a well-studied proposal or system to operationalise these principles under an agreement that is based solely on unilaterally announced pledges. In this, countries such as India and China have failed to lead from the front.
As such the agreement that is likely to emerge will lack the structure to enforce climate actions, particularly by developed countries. If the Lima summit is any indication, unless something dramatic happens in December 2015, in all likelihood the Paris agreement will be a weak and seriously compromised one that will lead to a 3° C temperature rise by the turn of the century. Developing countries, particularly the poor and vulnerable ones among them who are already facing the impacts of the 0.85° C increase since industrialisation began, will bear the brunt of the disastrous effects of severe climate change.
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