11 Dec 2015

COP21: the final countdown has started, but still some way to go

by Brendan Bateman

The most recent drafts include a number of significant changes from those issued only 24 hours earlier, indicating there is a distance to go yet before landings on all issues are achieved.

Negotiations over the draft texts released by the French presidency of the COP on Wednesday afternoon continued well into the night and late hours of Thursday morning on multiple fronts. It was clear that the text of the Paris agreement and draft decision released were not necessarily reflective of the current state of negotiations. The fact that the G77 grouping was generally supportive of the texts in the initial COP plenary on Wednesday evening suggested that the interests of that grouping had been generally accommodated.

The next draft of the agreement and decision text were released late on Thursday evening. Although the French presidency of the COP is maintaining that an agreement will be concluded this Friday, this is looking increasingly unrealistic. A number of additional late nights are likely to be required to get the agreement and decision texts into final form. The fact that the most recent drafts include a number of significant changes from those issued only 24 hours earlier indicates that there is a distance to go yet before landings on all issues are achieved.

Here is where the key "cross-cutting" issues currently sit:

Ambition: "well below" 2 degrees

The wording around the 2 degree/ 1.5 degree goal appears to have settled on holding the increase in global average temperature to "well below" 2 degrees above pre-industrial levels and to "pursue efforts to limit the temperature increase to" 1.5 degrees. No other options are provided in the draft text.

Furthermore, the agreement requires all parties to prepare successive national determined mitigation contributions (NDMC) towards achieving the objective of the agreement. The draft decision text requires these to be submitted by 2020, and to be reviewed on a five yearly cycle. Before being finalised, all NDMCs are to be submitted for independent review to allow a synthesis report to be prepared.

The draft decision text contains prescriptive requirements for NDMCs to facilitate transparency and consistency. In particular, each NDMC must articulate how it is fair and ambitious, in light of national circumstances and in achieving the goal of keeping temperature rise to well below 2 degrees. Options in the text also require NDMCs to have regard to any global stocktake of mitigation efforts that is carried out, and for each successive NDMC to build on efforts from previous ones so has to provide for a continuous scaling-up of mitigation ambition.

In relation to the timing of achieving the long-term goal, the agreement requires a peaking of emissions as soon as possible, with rapid reductions thereafter to achieve emission neutrality in the second half of the century, albeit recognising that developing countries will take longer to reach the peak of their emissions.

Interestingly, the draft decision text contains a clause which urges parties to reduce support for high-emission investments. Given Australia refused to sign up to a similar commitment before the conference, it will be revealing if the clause survives the next round of negotiations.


The proliferation of references to the principle of common but differentiated responsibilities has been reduced in the revised text. As the agreement is made under the Convention and in accordance with its principles, these extensive references were unnecessary.

As noted above, all parties are required to prepare NDMCs towards achieving the objective of the agreement. The agreement also requires that any party that has already communicated mitigation actions must continue to do so. If this extends to include INDCs already submitted, then 186 countries will have that obligation, including most developing countries. However, developing countries will be entitled to receive support from developed countries to assist them to comply with this requirement. The agreement also provides that least developed countries and small island states have a discretion on how regularly to report their NDMCs.

Finance: goals and "results based payments"

The parts of the agreement and decision text dealing with finance contain the most bracketed text. Principal responsibility for the provision of finance to assist mitigation and adaptation efforts continues to fall on developed countries.

Australia, along with other developed countries, had opposed the inclusion in the agreement of a quantitative amount in respect of financial contribution, and this appears to have prevailed in the new text, with more qualitative criteria being specified.

There is a requirement to set a quantified goal by 2020 of the funds required, and to review the adequacy of those funds every 4 or 5 years. There remains however a provision which requires that new funding build on previous commitments; in this regard US$100bn continues to be referenced as a floor. The decision text contains numerous references to "results based payments" which seeks to instil some discipline into the manner and circumstances in which payments will be made to developing countries for implementing mitigation and adaptation programs.

The agreement also contemplates potential multiple sources of finance, including from developing countries as their circumstances allow, as well as private finance. In this respect the drafting tends to better reflect the realities of financial sources which would be available for mitigation, adaptation and capacity building projects.

Almost there ‒ but they shouldn't rush it

Overall, the revised text appears to represent a better balance of parties' positions and hopefully a narrowing of the issues in dispute. In releasing the revised text, the French environment minister indicated that each party would have two hours to review before further consultative sessions would be convened. At these sessions, the expectation is that parties will identify concerns with the text and propose solutions, with a time-limit on those discussions. Solutions identified through this process would then be considered with a view to reaching a consensus position.

Even though work will continue to finalise positions on the outstanding issues, the fact that draft text is now being referred out for legal and linguistic review simultaneously gives rise to a risk that the rush to finalise components of text will jeopardise consistency and cohesion across the provisions of the documents, particularly as parts of the texts remain open for discussion. Further, the decision text is quite lengthy and continues to contain provisions which are more appropriately included in the draft agreement, or merely duplicate those provisions. This could result in conflict or at the very least confusion.

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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.