The 2015 Paris Agreement 1. General Architecture Benito Müller

1. ecbi european capacity building initiative initiative européenne de renforcement des capacités The 2015 Paris Agreement 1. General Architecture Benito Müller Director ecbi, Head of Fellowship Programme for sustained capacity building in support of international climate change negotiations pour un renforcement durable des capacités en appui aux négociations internationales sur les changements climatiques

2. 1. General Architecture The purpose of this agenda item is to discuss how the general architecture of the 2015 Agreement ensures that it is durable, equitable, and effective. The general architecture of the 2015 Agreement can be characterised with reference to certain categories of architectural elements, instruments and countries. Items 1.2 to 1.4 are a rough attempt to characterise these categories. 1.1. “Top Down” vs “Bottom Up” 1.2. Substantive Categories (of Architectural Elements) 1.3. Legal Categories (of Architectural Elements and Instruments) 1.4. Country Categories (for differentiation)

3. 1.1. “Top Down” vs “Bottom Up” It’s all about the discretion to choose! The distinction between “top-down” and “bottom up” can be interpreted as referring to level of discretion of individual Parties concerning category membership, the issue being to what extent are Parties free to make these choices and reverse them? The level of discretion can be constrained by by substantive prescriptions of what options one is eligible to choose from, or by legal prescriptions as to the need to have one’s choice recognized by others. • Why restrict the discretion to choose? • Equity • Effectiveness (ambition) • Trust

4. 1.2. “Top Down” vs “Bottom Up” Substantive Prescriptions on What one can choose from “Top-down” (least discretion, highest prescriptiveness) • No choice • Only some options • All options Levels of Prescriptiveness “Bottom-up” (most discretion, lowest prescriptiveness) Why would one wish such substantive prescriptions? To increase the equity and adequacy of the regime (see Section 1.4)

5. 1.2. “Top Down” vs “Bottom Up” Legal Prescriptions on who is involved in choosing “Top-down” (least discretion, highest prescriptiveness) • International consensus + National ratification (Treaty) • International consensus (COP decision/agreement) • National legal consensus (Legislative decision) • National political consensus (Executive decision) Levels of Prescriptiveness “Bottom-up” (most discretion, lowest prescriptiveness) Why would one wish such legal prescriptions? To increase the trustworthiness of contributions/promises (see Section 1.3)

6. 1.2. “Top Down” vs “Bottom Up” “Multi-dimensional choices” Legal Prescriptiveness Kyoto Protocol Kyoto Protocol Substantive Prescriptiveness Legal Prescriptiveness Substantive Prescriptiveness “Legal strength” Anything Goes Anything Goes

7. 1.2. Substantive Categories (of Architectural Elements) • b. (Potential) Substantive Categories of INDCs • Mitigation, • Adaptation, • Finance, • Technology Transfer, • Capacity Building • Loss & Damage • a. Basic Categories • Intended Nationally Determined Contributions (INDCs) and • Other, in particular, ‘regulatory’ elements (REs) • c. Categories of Regulatory Elements • Accounting rules • Anchoring Provisions

8. 1.3. Legal Categories (of Elements and Instruments) • b. Categories of Instruments • Treaty/Protocol • Annex/Appendix/Schedule • COP Decision • Inf. Document • Domestic law • Executive order/regulations • Data Base • a. Categories of Legal Bindingness “Legal strength” Internationally binding  Domestically binding  Politically binding  Non-binding/aspirational

9. 1.3. Legal Categories (of Elements and Instruments) The basic legal structure of the Paris Package (“protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties”) Main Agreement Annexes COP Decisions Data Bases

10. 1.3. Legal Categories (of Elements and Instruments) The basic legal structure of the Paris Package (“protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties”) Main Agreement Annexes COP Decisions Data Bases

11. 1.3. Legal Categories (of Elements and Instruments) The basic legal structure of the Paris Package (“protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties”) Top-down Most prescriptive Protocol Legal Prescriptiveness Annexes COP Decisions Data Bases Least prescriptive Bottom-up

12. Excursion 1: Levels of Legal Bindingness and Degrees of Legal Prescriptiveness

13. Public announcement Evidence state’s intention to be bound “The United States will not use nuclear weapons against any non-nuclear–weapon State party to the Treaty on the Non-Proliferation of Nuclear Weapons..., except in the case of an attack on the United States, its territories or armed forces, or its allies...”(Declarations by the US Secretary of State in 1978) Levels of Legal Bindingness and Degrees of Discretion

14. This ecbiLegal Note considers the legal options for creating a space for QELROs in the Paris Agreement. It explores the legal feasibility of having an annex – say ‘Annex Q’ for QELRO – to a Treaty/Protocol (which as such would have to be ratified/enter into force) where Parties could inscribe targets which would automatically become legally binding. Thus there would be no need for some additional amendment ratification process (as in the case of the Kyoto Protocol), although possibly with the precondition of a COP decision expressing consent to ensure environmental integrity.

15. 1.2. “Top Down” vs “Bottom Up” QELROs in the Paris Protocol “Legal strength” Kyoto Protocol Protocol Internationally binding Q.3 Q.1 Q.2 Annex Q.1 Annex Q.3 Annex Q.2 Legal Prescriptiveness L-Prescriptiveness COP Decision + N’l ratification COP Decision + UD Unilateral Declaration (UD) Internationally binding contributions ≠ National ratification

16. End of Excursion 1

17. Thank you!

18. Excursion 2: International law: the International Law Association’s (ILA) Legal Principles related to climate change

19. ILA Legal principles related to climate change About • Committee on legal principles • Draft articles and commentaries – blueprint for an international treaty? • Current and emerging law applicable between states Principles: • Sustainable development (draft Art.3) • Equity (draft Art.4) • CBDRRC (draft Art.5) • Special circumstances and vulnerability (draft Art.6) • Prevention (draft Art.7A) • Precaution (draft Art.7B) • International cooperation (draft Art.8) • Good faith (draft Art.9) • Inter-relationship (draft Art.10) http://www.ila-hq.org/en/committees/index.cfm/cid/1029

20. ILA Legal principles related to climate change Some findings & consequences • Principle of international cooperation requires states to transfer scientific knowledge, develop international law and fill existing legal gaps • Atmosphere is a “common natural resource” and State sovereignty over atmospheric space must be exercised in the interest of humankind – for the benefit of present and future generations • Protection of the climate system must be balanced with economic and social development • The totality of the global atmosphere must be managed as one in accordance with internationally agreed rules. • These rules need to reflect other important objectives, such as the realisation of human rights and poverty eradication. • Thus, increasing GHG emissions in developing countries remain - to some extent - justified.

21. ILA Legal principles related to climate change Due diligence obligation • Principle of prevention applicable to climate change – due diligence to avoid, minimize and reduce likelihood of harm through climate change! • Obligation to act where (a) reasonable foreseeability of damage falling short of conclusive scientific proof and (b) a threat of serious or irreversible damage • Need for ongoing assessment of measures in light of new scientific knowledge • Procedural obligations: environmental impact assessment, notification and consultation • Differentiated responsibilities, due to differing (Art.5.3): - Historical, current and future contributions to climate change - Technological, financial and infrastructural capabilities - National circumstances (and constraints) • States’ commitments – fall along a spectrum – and shall evolve over time as contributions, capabilities, economic fortunes and national circumstances evolve (Art.5.4) • Responsibility for GHG remains crucial component • Developed countries have an obligation to provide resources and technologies

22. End of Excursion 2

23. 1.4. Country Categories (for differentiation) Background Material

24. 1.4. Country Categories (for differentiation) Is there a need for differentiation? Todd Stern: “it is difficult to construct an effective agreement unless countries of very different capabilities – for example, emerging or wealthy non-Annex I economies compared to Least Developed Countries – can be expected to act in different ways.” Central to a regime’s fairness is its ability to differentiate between different actors and to tailor commitments to responsibilities and capacities. Thus far, this has primarily taken the form of a clear distinction between the commitments required of Annex I (developed country) and non-Annex I (developing country) Parties. “developed” v. “developing” (= not-developed) Annex I v. non-Annex I

25. 1.4. Country Categories (for differentiation) 5. Exploring various options for differentiation in a regime applicable to all 5.1. Creating new categories of countries? 5.2. Facilitating movement between categories of countries? 5.2.1 Triggering graduation based on ‘objective’ criteria 5.2.2. Triggering graduation through membership in another ‘club’ 5.3. Encouraging self-election into categories of countries? 5.4. Encouraging differentiation of commitments and actions across countries?

26. 1.4. Country Categories (for differentiation) 5.1. Creating new categories of countries? The UNFCCC provides for the possibility of amendments (Article 15) and specifically for new annexes (Article 16). Politically, however, there is likely to be resistance to defining any further country lists, beyond those defined by the category of Annex I and Annex II. Any amendments to this distinction are likely to be perceived by some countries as a fundamental alteration of the structure of the UNFCCC, and its balance of responsibilities, and as therefore undermining it (Brazil, 2009; China, 2012; India, 2012), rather than viewing it as working within and enhancing the UNFCCC. NB: Categories = Lists/Annexes “Strict Definition” of categories

27. 1.4. Country Categories (for differentiation) There are voices from developing countries that do envisage new (sub-) categories of countries

28. 1.4. Country Categories (for differentiation) • 5.2. Facilitating movement between categories of countries? • 5.2.1 Triggering graduation based on ‘objective’ criteria • 5.2.2. Triggering graduation through membership in another ‘club’ • Note: “movement” ≠ “graduation” • In more general terms: Definition of Country Category membership • Based on ‘objective criteria’ • Based on other membership(s). Fact:Annex I = OECD (1990) +EITs • 5.3. Encouraging self-election into categories of countries? Top-down: 5.2. Substantive Prescriptions Country Category A Country Category B Bottom-up: 5.3 INDC.1 INDC.2 INDC.3 INDC.4 INDC.5 INDC.6

29. 1.4. Country Categories (for differentiation) • It is highly unlikely that, in the absence of any (top-down) substantive prescription the resulting regime would be equitable 5. Exploring various options for differentiation (Top-down) Definition based on ‘objective’ criteria (Top-down) Definition through membership in another ‘club’ (Bottom-up) Self-election into categories of countries (Bottom-up) Differentiation of commitments and actions

30. 1.4. Country Categories (for differentiation) 5.4. Encouraging differentiation of commitments and actions across countries? “There is a continuum of actions, rather than any strict categorization.” Substantive Prescriptions INDC.1 INDC.2 INDC.3 INDC.4 INDC.5 INDC.6 Bottom-up INDC.1-countries INDC.3-4-5-countries Ex post categories INDC.2-countries INDC.5-6-countries • Note: This • “However, without a clear context of annexes benchmarked to particular expectations, or an alternative reference framework that requires some countries to do more, there is a danger that this incremental approach will be ineffective.” • Moreover, it is again highly unlikely that the resulting regime would satisfy the demands of intra-generational distributive justice (equity)

31. 1.4. Country Categories (for differentiation) 5. Exploring various options for differentiation (Top-down) Definition based on ‘objective’ criteria (Top-down) Definition through membership in another ‘club’ (Bottom-up) Self-election into categories of countries (Bottom-up) Differentiation of commitments and actions

32. 1.4. Country Categories (for differentiation) Top-down option 1: External club membership • Annex I Mk 2 = OECD (2014) +EIT (5.2.2.) is not going to resolve the developed country objections to the use of non-Annex I as defining ‘developing countries’ GDP/cap = =

33. 1.4. Country Categories (for differentiation) 5. Exploring various options for differentiation (Top-down) Definition based on ‘objective’ criteria (Top-down) Definition through membership in another ‘club’ (Bottom-up) Self-election into categories of countries (Bottom-up) Differentiation of commitments and actions

34. 1.4. Country Categories (for differentiation) Top-down option 2: Annex P (‘Paris’) defined by objective criteria non-Annex P Annex P • Assume: Annex P membership is triggered by a GDP/cap threshold of $6000 • Having China in the same category as themselves, this would satisfy US position • But it likely to pose some serious problems with G77 and China, if Annex P is meant to be an operationalization of “developing country” (regardless of the threshold level).

35. Excursion 3: G77 Membership

36. A Tale of Two “Clubs”: G77+China and OECD + EU

37. G77 membership history • New Zealand signed the original "Joint Declaration of the Developing Countries" in October 1963, but pulled out of the group before the formation of the G-77 in 1964 (it joined the OECD in 1973). • Mexicowas a founding member, but left the G-77 after joining the OECD in 1994. It had presided over the group in 1973–1974, 1983–1984; however, it is still a member of G-24. • South Korea was a founding member, but left the G-77 after joining the OECD in 1996. • South Vietnam was a founding member, but left the Group in 1975 when the North Vietnamese captured Saigon. • Yugoslaviawas a founding member; by the late 1990s it was still listed on the membership list, but it was noted that it "cannot participate in the activities of G-77." It was removed from the list in late 2003. It had presided over the group in 1985–1986. Bosnia and Herzegovina is the only part of former Yugoslavia that is currently in G-77. • Cypruswas a founding member, but was no longer listed on the official G77 membership list after its accession to the EU in 2004. • Malta was admitted to the G-77in 1976, but was no longer listed on the official G77 membership list after its accession to the EU in 2004. • Palaujoined the G-77 in 2002, but withdrew in 2004, having decided that it could best pursue its environmental interests through the Alliance of Small Island States. • Romaniawas admitted to the G-77 in 1976, but was no longer listed on the official membership list after its accession to the EUin 2007. • For G77, there are certain Exclusion Trigger Clubs, like the OECD or the EU, membership of which is not seen to be compatible with G77 membership. • It is likely, given the political polarisation of the UNFCCC, that “being a developed country” – however specified – would be regarded as incompatible with G77+China membership. • Thus any “hard” operationalization of the category of developing countries for UNFCCC – by an Annex P or however else -- which would contain G77 and China members is highly unlikely to be acceptable to these countries.

38. End of Excursion 3

39. 1.4. Country Categories (for differentiation) The Conundrum 5. Exploring various options for differentiation (Top-down) Definition based on ‘objective’ criteria (Top-down) Definition through membership in another ‘club’ (Bottom-up) Self-election into categories of countries (Bottom-up) Differentiation of commitments and actions What to do? “There is emerging common ground amongst Parties that a hybrid architecture combining nationally determined contributions or commitments with top-down elements such as rules on transparency and accounting, as well as an assessment/consultative process will likely be the architecture of the 2015 agreement.”[Rajamani (2014)] Problem: An assessment/consultative process cannot work without some substantive prescriptions

40. 1.4. Country Categories (for differentiation) “Top-down-light Model”: Abandon “hard” operationalization/strict definitions in favourof “soft” operationalization/lose definitionsin giving top-down guidance as to who should be doing what. • Use terminology such as “(less capable) developed country”, “(capable) developing country”, “appropriate national circumstances” –without ex-ante operationalization through annexes – to express expectations about who is meant to do what. • Provide the architectural space (such as “Annex Q”) for everyone to do as much as they possibly can (to achieve ambition). • Use political tools to “urge” countries to really do their best in their choice of the spaces they wish to engage through in the Agreement •  Bottom-up selection of country category politically guided by objective criteria

41. Thank you!