02 Dec 2015

COP21: the challenges laid out

by Brendan Bateman

There are two obstacles at COP21 to achieving its aim of limiting global warning to less than 2 degrees.

In a break with the usual order, the French Government scheduled the attendance of world leaders at the start rather than the end of the conference with the hope of setting the tempo of negotiations to secure a new climate change agreement from 2020.

While universally pointing to the urgency of securing an ambitious agreement to reduce global greenhouse gas emissions with an aim of limiting global warning to less than 2 degrees, the opening addresses reveal some of the key obstacles to achieving an ambitious agreement which delivers this objective.

Among the obstacles is one built into the UN Framework Convention on Climate Change itself back in 1992 which distinguished between developed and developing countries. This distinction affects a number of other issues including finance, reporting and verification, and low emission technology transfer. India in particular is reluctant to let go of the distinction. This was the reason why much of the draft text of the agreement, which had been removed in the pre-negotiations at Bonn, was reinstated at the request of the G77 group of nations.

The other impediment to achieving the objective is the fact that emissions reductions targets are not the subject of negotiation at this conference. More than 180 countries have already submitted their INDCs which identify a county's emissions reduction target. This reflects the "bottom up" approach of the development of the Paris agreement, rather than the "top down" approach of the Kyoto Protocol and what was attempted at Copenhagen in 2009. However, the assessment of INDCs submitted indicates that, at best, they will limit warming to 2.7 degrees.

Australia's INDC target is a 26-28% reduction by 2030 based on 2005 levels, which is has been widely criticised as inadequate by comparison to other developed countries. While Prime Minister Turnbull has indicated that Australia is willing to review its emission reduction target, this is part of a universal review mechanism proposed to be included in the Paris agreement by which countries will periodically review their target over the term of that agreement, not as part of these negotiations.

With these fundamental issues still in play, it is instructive to look at what Australia's goals are going into the conference :

  • a universal mitigation commitment on a common platform, requiring all countries to contribute to emissions abatement. This aims directly at ending the differentiation between developed and developing countries;
  • ensuring robust monitoring and verification of abatement commitments. While countries have submitted their INDCs, it is imperative that they are held to account in delivering on those commitments in a transparent way; and
  • establishing an enduring agreement which will operate over time. Key to this is the proposal for periodic review of commitments to build ambition over time with a view to achieving the 2 degree goal.

The biggest risk at the conference is not whether there will be an agreement (the majority opinion is that there will be an agreement of sorts) but that the agreement is a minimalist one. Simply packaging together the INDCs will not build the framework necessary for their implementation, or establish any process for future commitments. This was a concern echoed by French President Hollande in his address to the conference.

In this regard, Paris is not the end point, but an important recalibration point in the UNFCCC process, one that recognises that things have changed since 1992 when the UNFCCC was established, in some respects significantly. This includes the rate of development of countries formerly considered less developed, the science of climate change itself and the abatement technologies available to meet the challenge. Whether there is a sufficient recalibration is the challenge of this conference.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.