Paris Climate Change Talks, ‘A Genuine Triumph or Total Fantasy’: David Hodgkinson

5 May 2016 Christopher Johns, Manager, Northern Australia and Land Care Download PDF

Key Points

  • The Paris Climate Change Agreement of December 2015 unanimously accepted a universal agreement to restrict global warming to 1.5 to 2°C above pre-industrial levels.
  • The Agreement recognises that climate change represents an urgent and potentially irreversible threat to human societies and thus requires the widest possible cooperation by all countries.
  • This Paris Agreement contains 29 legally binding articles for nations to commit to nationally determined emission reduction measures and targets.
  • The Agreement does not, however, contain legally binding obligations on any state to meet emissions reduction targets.
  • Many climate scientists believe the actions agreed in Paris are far too weak to get anywhere close to the target.

Introduction

From 30 November to 11 December 2015, the United Nations Framework Convention on Climate Change (UNFCCC) conducted the twenty-first session of the Conference of the Parties (COP 21) in Paris, France. The aim of the Conference was to establish, for the first time, a universal agreement to keep global warming below 2°C. On the evening of 12 December, there was jubilation when the French Foreign Minister, Laurent Fabius, declared that an Agreement had been unanimously accepted. Australia’s Foreign Minister, Julie Bishop, hailed the Agreement as giving Australia comfort “to take tougher action to reduce its greenhouse gas emissions”.

The Paris Agreement brought together nearly 200 countries under a single framework. It set an ambitious goal of limiting global warming to 1.5 to 2°C above pre-industrial levels, and calls on all parties (whether industrialised or developing) to submit nationally determined contributions to the reduction in greenhouse gas emissions, which will be increased over time. It also provides a foundation for transparency and accountability and for increased support for poor and vulnerable countries.

In November 2015, in anticipation of COP 21, FDI conducted and published a Feature Interview with Associate Professor David Hodgkinson of the University of Western Australia, discussing the international climate change regime, including the decline of the Kyoto Protocol and the development of a treaty in which both developed and developing countries have emission reduction targets.

Now, in the aftermath of the Paris Conference, FDI has again interviewed Professor Hodgkinson to discuss the outcomes of COP 21 and the development of a new treaty in which both developed and developing countries have emission reduction targets. He will also discuss the considerable challenges COP 21 presents.

The Interview, based upon presentations given by Professor Hodgkinson to Curtin University, Curtain Corner and to the Environmental Defender’s Office Western Australia, is to be published in two parts. Part One, below, will contain a background of the events leading to COP 21 and global warming mitigation arrangements contained in the Paris Agreement. Part Two will discuss adaptation, carbon markets, the Clean Development Mechanism (CDM) and legal aspects of the Agreement and its entry into force. Professor Hodgkinson also makes some observations about the euphoria in Paris and discusses and questions whether such euphoria is misplaced.

The deputy director of the Tyndall Centre for Climate Change Research in the UK, Kevin Anderson, says this about the Paris climate change talks this past December:

The climate agreement delivered … in Paris is a genuine triumph of international diplomacy. It is a tribute to how France was able to bring a fractious world together. And it is testament to how assiduous and painstaking science can defeat the unremitting programme of misinformation that is perpetuated by powerful vested interests. It is the twenty-first century’s equivalent to the victory of [Copernicus] … over the inquisition …

Yet it risks being total fantasy.

Commentary

FDI: Professor Hodgkinson, could you firstly provide a brief background to the Paris Agreement and a summary as to why it is so significant?

DH: The UNFCCC was adopted in 1992 and entered into force in 1994, with almost universal state participation. It provides a framework for future action and cooperation by states on climate change. Meetings of the UNFCCC are called ‘Conferences of the Parties’ or COPs.

The Kyoto Protocol to the UNFCCC was adopted in 1997 and entered into force in 2005. It places legally binding limits on developed state parties’ emissions for a 2008 – 2012 ‘first commitment period’ and, after a fashion, does so for the second period from 2013-2020. The Kyoto Protocol includes no major emitter.

At COP 15 in Copenhagen in 2009, the foundations were set for the Paris COP last December – although the parties didn’t know it at the time. Generally regarded as a failure, Copenhagen did represent the first effort to move towards a new structure based on bottom-up, non-binding commitments from all major emitting countries (the result of COP 21). Indeed, a number of the key principles of the Paris Agreement can be found in what was termed the Copenhagen Accord seven years ago.

At COP 17 in Durban in 2011, a working group was created with a mandate ‘to develop a protocol, another legal instrument or an agreed outcome with legal force’ under the UNFCCC and applicable to all party nations – both developed and developing – to be finalised in December in Paris at COP 21 and to take effect from 2020.

This removes the ‘common but differentiated responsibilities and respective capabilities’ principle set out in the Kyoto Protocol under which only developed states take the lead in addressing and in mitigating the climate change problem.

And as a result of COP 19 in Warsaw in 2013, developed states no longer have binding emissions reduction targets (negotiated by all developed states together) but, rather, all states (developed and developing) have ‘intended nationally determined contributions’ (INDCs).

INDCs remove the need for states to agree on a single approach to climate change mitigation, or even to disagree. Each state simply brings its own emission reduction target to the table. At COP 21 the targets – the INDCs – (unlike Kyoto) were not negotiated. They were simply stated and announced before the meeting. And, again, they are non-binding.

FDI: What outcomes does the Paris Agreement seek to achieve in regard to the mitigation of the causes of climate change?

DH: Last December in Paris at COP21, 195 states together agreed to an ongoing process to make commitments to reduce greenhouse gas (GHG) emissions.

This 12-page ‘Paris Agreement’ contains legally binding articles (29 in all) and binding commitments, but it does not contain legally binding obligations on any state to meet emission reduction targets.

It is accompanied by a 19 page ‘Decision Text in which the COP adopts the Paris Agreement. It adopts that agreement under the UNFCCC, and the agreement will be open for signature in New York for a year from 22 April. The COP invites states to ratify, accept, approve or accede to the agreement as soon as possible.

The Decision Text recognises that ‘climate change represents an urgent and potentially irreversible threat to human societies and the planet and thus requires the widest possible cooperation by all countries, and their participation in an effective and appropriate international response, with a view to accelerating the reduction of global greenhouse gas emissions’.

Again, it makes decisions to give effect to the Paris Agreement.

 The Paris Agreement could, it has been argued, have far-reaching implications. It establishes a more robust and durable architecture for international cooperation on climate change.  It contemplates a framework under which countries come forward with emission reduction commitments on an ongoing basis.  The framework will also subject those commitments to public review and assessment.

All of that may prove to be true, but it is not the whole story. And that story is revealed in a few key provisions. For instance, Article 2.1(a) with regard to temperature states that this Agreement aims to strengthen the global response to the threat of climate change by holding the increase in the global average temperature to well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 degrees Celsius above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change. It should also be noted that Article 2(2) provides that the Agreement will be implemented to reflect equity between nations and the principle of common but differentiated responsibilities according to respective capabilities and circumstance.

One view is that this is simply a statement of intent and the reference to 1.5 degrees Celsius was added after pressure from those countries most at threat from the effects of climate change.

Another view, however, would hold that for the first time, an international climate agreement has at its heart a goal to not just hold warming below 2 degrees Celsius but to hold warming well below that temperature and to pursue limitation of that temperature rise to 1.5 degrees Celsius. Bill McKibben has stated that this is remarkable – that it lays out in no uncertain terms the most ambitious project the world has ever embarked on.

In this optimistic vein, the agreement looks further than near-term emission reductions, and specifies that human-induced emissions and removals have to ‘balance’ in the second half of the century.

This would seem to mean that global human greenhouse gas emissions need to reach zero.

Climate Action Tracker, an independent scientific analysis produced by a number of research organisations, states that the national mitigation contributions now associated with the Paris Agreement would lead to a median warming of around 2.7 degrees Celsius by 2100 (the full range is 2.2 to 3.4 degrees Celsius). Compared to the 3.6 degrees Celsius warming by 2100 that is projected to result from current policies. Either way, projects fall well short of the Agreement targets.

Climate Action Tracker also broadly reflects other analyses post COP21.

The World Resources Institute states that the subset of studies that assess temperature increases suggest that, with the INDCs, we will witness 2.7 to 3.7 degrees Celsius of warming compared with pre-industrial levels. This is an improvement over business-as-usual trends, which would lead to 4 to 5 degrees Celsius of warming, but falls short of the goal to limit warming to below 2 degrees Celsius. Since temperature impacts are calculated out to 2100, the studies’ findings depend significantly on assumptions about what happens to emissions after the target date specified in the INDC by 2030 for most countries, and 2025 for the United States.

In regard to emissions, Article 4(1) states that Parties aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science.

The Paris Agreement, in addition to a temperature goal of ‘well below’ 2 degrees Celsius above pre-industrial levels, also provides for a targeted emissions peak ‘as soon as possible.’

Clause 4(1) acknowledges, however that emissions have yet to peak.

In regard to commitments, Article 3 states that as nationally determined contributions to the global response to climate change, all nations are to undertake and communicate ambitious efforts with the view to achieving the purpose of this Agreement as set out in Article 2. The efforts of all Parties will represent a progression over time.

The Paris Agreement does not make commitments legally binding; they are simply ‘welcomed.’  This approach made it possible not only for most states to sign up to the agreement but to maximize the ambition of those pledges. This non-binding, bottom-up approach meant that large emitters – the United States, China, India – could make commitments rather more ambitious that they otherwise might have done. Practically all 195 parties pledged commitments.

Though the content of emission reduction commitments is voluntary, the Agreement underpins the commitments with a set of binding procedural requirements to promote transparency.  This structure includes rules for submitting information on how a commitment was formulated and for monitoring, review, and verification (MRV) of performance. These MRV rules apply equally to developed and developing countries.

At COP 21 the targets and commitments, unlike Kyoto, were not negotiated. They were simply stated and announced before the meeting. And, again, they are non-binding.

FDI: Is there provision for the review and the potential to increase emission reduction commitments?

 DH: It is clear from the Agreement that the commitments, as currently submitted are insufficient to meet emission and temperature targets or goals. In this regard, Articles 4(2) and (3) of the Paris Agreement are crucial. Article 4(2) provides that each party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve.

Article 4(3) requires each country to communicate progress, or otherwise, to achieving its stated goals.

Countries are exhorted to submit new measures by 2020, and to revise every five years after that date.  There will also be international reviews of the targets every five years, the first review in 2018, two years prior to the Paris Agreement taking effect.

Finally, developed states should continue taking the lead by undertaking emission reductions. Developing countries, however, may need to consider economic development. They should continue enhancing their mitigation efforts, and are encouraged to move, over time, towards economy-wide emission reduction or limitation targets in the light of different national circumstances.

In other words, all countries are encouraged to achieve their committed emission goals as soon as possible, recognizing that peaking will take longer for developing countries to achieve this outcome.

The text continues, however, to state an aspiration, for the second half of this century; to achieve a balance between man-made emissions and the removal of greenhouse gases to sinks, where greenhouse gas components are stored indefinitely. This leads to what is referred to as negative emissions, which is viewed by some to be the heart of the Paris Agreement.

In Part Two of this Feature Interview, David will discuss negative emissions in more detail and continue to discuss the issue of carbon markets and the legal and enforceability status of the Agreement.

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David_Hodgkinson

About the Interviewee: Associate Professor David   Hodgkinson holds a Bachelor of Arts degree (First Class Honours) and Bachelor of Laws and Master of Philosophy degrees. He was also a postgraduate fellow at Columbia University in New York City. Earlier in his career he was Senior Legal Research Officer at the High Court of Australia where he worked mostly for Justice Sir William Deane. He is currently, with Rebecca Johnston, a partner of aviation and aerospace law firm HodgkinsonJohnston and an executive director of EcoCarbon, a not-for-profit association.

David was formerly Director of Legal Services at the International Air Transport Association (IATA), the organisation of the world’s airlines, in Montreal and Geneva and Special Counsel (Aviation) at a national Australian law firm. He is currently an associate professor (part-time) in the law school at the University of Western Australia where he teaches aviation law.

David is the co-author of the book Global Climate Change: Australian Law and Policy (2008), the standard Australian text on climate change law. He has also written numerous refereed journal articles, book chapters, monographs and opinion pieces on climate change law and policy, and spoken at (and convened) conferences on aviation and on climate change around the world.

He was the principal draftsperson of the Peninsula Principles on Climate Displacement, and the general editor of the loose-leaf service Australian Climate Change Law and Policy.

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