(1) Introduction On 7–18 November, the twenty-second Conference of the Parties (COP-22) to the United Nations Framework Convention on Climate Change (UNFCCC) and the twelfth Meeting of the Parties to the Kyoto Protocol (CMP-12) took place in Marrakech. Due to the rapid entry into force of the Paris Agreement, Marrakech also hosted the first Conference of the Parties serving as the Meeting of the Parties to the Paris Agreement (CMA-1). Nobody had expected this one year before in Paris—the entry into force of the Kyoto Protocol, by comparison, had taken eight years. Many hailed the rapid entry into force as further proof of the commitment of the world community to finally tackle the climate problem. However, such optimistic perspectives were dealt a heavy blow on the third day of the conference, when the results of the US presidential election arrived on the screens. The election of Donald Trump as president came as a shock to many and cast a considerable shadow over the further proceedings. Trump had, in the past, called climate change a ‘hoax’ invented by China, and he announced his intention to ‘cancel’ the Paris Agreement and to dismantle US climate policy. There is thus some reason to expect that the United States will withdraw from international climate policy or may even start to actively sabotage the international process. Still, over the course of the conference all other parties signalled that they were continuing to take the agreement seriously. This is reflected in the final declaration of the conference, the Marrakech Action Proclamation for Our Climate and Sustainable Development (MAP). In the very first paragraph, the proclamation signals ‘a shift towards a new era of implementation and action on climate and sustainable development’ (MAP <http://unfccc.int/files/meetings/marrakech_nov_2016/application/pdf/marrakech_action_proclamation.pdf>). Apart from these rhetorical signals, there were also more tangible indications that the majority of countries remain committed to the Paris Agreement. Notable in this context are, for example, the long-term decarbonization strategies presented by Canada, Germany, Mexico, and the United States in Marrakech (in the US case presented by the outgoing Obama administration). In addition, twenty-two countries and numerous cities, regions, and companies established a ‘2050 pathways platform’ and announced their intention to develop such strategies. A further highlight was the declaration of the Climate Vulnerable Forum, an association of countries that are most vulnerable to the impacts of climate change. This includes the small island states and the least developed countries. All forty-eight member countries announced their intention to shift to 100 per cent renewable energy as soon as possible. While the share of global emissions of these countries is relatively small, this announcement of the world’s poorest countries overturns the traditional assumption that ambitious climate action is incompatible with economic development and poverty alleviation. Overall, the Paris Agreement appears to be fairly resilient to the shock of the US election. The transformation dynamic continues to be there. In the immediate future, it will be important if and how this dynamic may be further channelled by the UNFCCC and the Paris Agreement without (or maybe even against) the United States. This report starts by discussing developments regarding the implementation of the Paris Agreement, in particular, the detailed ‘rulebook’ and cooperative mechanisms. Next, it discusses developments in various avenues for raising climate ambition that have been put in place by the Paris conference: the 2018 facilitative dialogue, the engagement of non-state and sub-national actors, and the elaboration of mid-century climate strategies. Subsequently, this report will discuss other Marrakech developments, in particular, issues on climate finance, adaptation, and loss and damage. (2) Implementing the Paris Agreement (A) The Paris Rulebook The Paris Agreement provides basic obligations for parties, creates new procedures, and vests institutions with new authority. In order to make the Paris Agreement operational, these generic provisions, however, must be translated into detailed rules: a ‘rulebook’ must be written. The rapid entry into force of the Paris Agreement posed some procedural challenges in this regard, as the ‘rulebook’ was supposed to be adopted at CMA-1, which was supposed to take place in late 2018. Because CMA-1 had already convened in Marrakech, however, it was not possible to prepare these decisions. A procedural solution was found by not finishing, but only suspending, CMA-1, allowing it to be continued in a second phase in 2017 and to be terminated by the end of 2018 (Phase 3). At the same time, this decision marks the most significant progress made in Marrakech on implementing the Paris Agreement: the parties adopted a detailed work program for the ‘fine print’ of the agreement as well as a clear timetable. (Preliminary) decisions of substance were not taken in Marrakech. However, this had not been expected and would have contravened the governing principle of ‘nothing is agreed until everything is agreed.’ Although they did not make substantive decisions on the Paris Agreement, parties exchanged views on key issues of its implementation. Many developing countries stressed their need for flexibility and called for guidance in order to ‘factor in’ differentiation between developing and developed countries. On the other hand, developed countries consider that overcoming the developed–developing country dichotomy that is engrained in the UNFCCC to be one of the key achievements of the Paris Agreement. (B) Cooperative Mechanisms (Article 6) Article 6 of the Paris Agreement comprises three approaches for countries to cooperate with each other in achieving their contributions: ‘cooperative approaches’ under Article 6.2; a new mechanism to promote mitigation and sustainable development (Articles 6.4–6.7); and a framework for non-market approaches (Articles 6.8 and 6.9). In Marrakech, parties started discussing possible ways of operationalizing the different mechanisms and how to proceed with the negotiations. This covered basic principles such as environmental integrity and sustainable development as well as the inter-linkages between the three Article 6 mechanisms. However, opinions on their future design are very far apart. Some countries essentially want a continuation of the Clean Development Mechanism, while others focus on linking domestic emission trading systems; many South American countries would prefer not to have any market-based cooperation whatsoever. Questions of governance (pro and contra central oversight) and the accounting of emission transfers were particularly controversial. The exchange will be continued at the inter-sessional meeting in May 2017. (3) Raising Ambition (A) The 2018 Facilitative Dialogue and the Global Stocktake The year 2018 will be the next important moment for international climate policy, not only because of the planned adoption of the Paris rulebook but also because the so-called ‘facilitative dialogue’ is scheduled for that year. This latter process is meant to be similar to the global stocktake that countries under the Paris Agreement will hold every five years, starting in 2023. This stocktake will assess and strengthen individual and global progress through countries’ nationally determined contributions (NDCs) towards the agreement’s goal, which is to limit global mean temperature increase to well below 2 degrees Celsius and to pursue best efforts to stay below 1.5 degrees Celsius. In contrast to the later stocktake, the 2018 dialogue will focus on mitigation and will be informed by a special report of the Intergovernmental Panel on Climate Change on the 1.5 degrees Celsius limit, to be published in 2018. However, the exact nature of the facilitative dialogue was not agreed upon in Paris, and consultations in Marrakesh also did not progress very far. Ultimately, the COP effectively postponed any decision until COP-23. As for the global stocktake, many parties agreed that it should comprise a technical/analytical phase followed by a political one. In regard to the outcome of the global stocktake, many developing countries held that the process is to further enhance international cooperation and climate financing, while others, including the EU, pointed at raising ambition and driving climate action. In order to move discussions further, parties were invited to submit their views by April 2017. (B) Engaging Non-State and Sub-National Actors Since roughly 2010, the world has seen a strong uptake of transnational climate governance initiatives alongside the UNFCCC. The spectrum of such initiatives is extremely diverse both in their forms of governance—from informal networks to (private) standard settings—as well as in regard to the types of actors involved: private corporations, business associations, and civil society groups as well as municipal and other subnational authorities. The Paris Agreement has explicitly acknowledged the contributions of non-state and subnational actors. The Paris conference agreed to continue the previous series of technical expert meetings, which was tasked with elaborating on the ways to increase climate ambition before 2020, under the new title ‘technical examination process’ (TEP). Parties also agreed to convene high-level events in conjunction with each COP between 2016 and 2020 and to appoint two high-level champions that shall facilitate high-level engagement. Discussions in Marrakech culminated in the Marrakech Partnership for Global Climate Action. Its key features are: a more focused mandate for the TEP to be ‘focused on international collaboration and dialogue among Parties and non-Party Stakeholders’; the establishment of regional thematic meetings with the support of the UNFCCC’s regional collaboration centres in Bangkok (Thailand), Bogotá (Colombia), Kampala (Uganda), Lomé (Togo), and St. George’s (Grenada); and an annual ‘engagement cycle’ that takes advantage of the full year and not only of the annual COP and formal inter-sessional meetings (Marrakech Partnership for Global Climate Action <https://unfccc.int/files/paris_agreement/application/pdf/marrakech_partnership_for_global_climate_action.pdf>). (C) Long-Term Strategies Article 4.19 of the Paris Agreement stipulates that ‘all Parties should strive to formulate and communicate long-term low greenhouse gas emission development strategies.’ In Marrakech, a ‘2050 pathways platform’ was founded that will support countries seeking to develop long-term, deep decarbonization strategies and build coalitions of cities, states, and companies engaged in long-term low carbon planning. Four countries published their final mid-century strategies in Marrakech: the United States, Mexico, Canada, and Germany. Whether or not the four long-term strategies are in line with the 1.5/2 degrees Celsius limit of the Paris Agreement is not entirely clear. Nonetheless, the process is highly important for providing long-term signals for the private sector, helping to avoid stranded investments and structural breakdowns later on in the transformation process. (4) Ongoing Work on Climate Finance, Adaptation, and Loss and Damage The provision of financial support from industrialized to developing countries continues to be a bone of contention. However, the industrialized countries have apparently drawn their lessons from the fiasco they suffered in Paris from the assessment of their financial contributions. In Marrakech, industrialized countries presented a new ‘roadmap’ for meeting the US $100 billion target, which is much more differentiated than the document presented before the Paris COP. It apparently also finds more agreement among developing countries, though many lamented the stark imbalance between resources for mitigation and adaptation. However, there continues to be the question of how global climate finance will be accounted and assessed in the future. The CMA still has a lot of work ahead in this respect. Adaptation financing continues to be an extremely important issue, in particular, for developing countries. In Marrakech, parties argued about whether and how the Adaptation Fund, which was established under the Kyoto Protocol, could be transferred to the Paris Agreement. At the last minute, parties decided that the Adaptation Fund should also serve the Paris Agreement. The Adaptation Fund also exceeded its fundraising target of US $80 million for the year by US $1 million, thus ensuring the fund’s future for the time being. Adverse climate impacts that cannot be adapted to are recognized in the Paris Agreement as a third column to climate action in addition to mitigation and adaptation. In Marrakesh, small but critical steps were taken on the issue. After the first review of the Warsaw International Mechanism for Loss and Damage (WIM) to address loss and damage associated with impacts of climate change, parties agreed on a more rigorous periodic review of WIM to take place in 2019. This review may become important because WIM is to serve the Paris Agreement after 2020. Further reviews are to be conducted on a five-year cycle, potentially in parallel to the global stocktakes (Decision 4/CP.22). Moreover, parties approved the five-year rolling work plan starting in 2017 for the Executive Committee of WIM. Topics in the work plan include displacement, migration, and comprehensive risk management (Decision 3/CP.22). (5) Outlook (A) Paris Implementation on Track—For Now The Paris Agreement was a diplomatic breakthrough. Now, only one year later, the election of President Trump looms large over the international climate negotiations. Nonetheless, the overall mood in Marrakech was positive after the initial ‘Trump bump,’ and parties worked constructively. The COP adopted a detailed work program for the ‘fine print’ of the agreement as well as a clear timetable committing parties to finish this work in 2018. This political momentum is underpinned by the accelerating dynamics of climate-friendly solutions, which are shifting the conventional wisdom on the costs and benefits of climate action. Mainly driven by domestic concerns, China alone added 34 gigawatts of solar photovoltaic capacity in 2016, adding as much capacity in a single year as had been installed globally in 2010 and nearly doubling its own installed capacity. Chinese coal consumption has fallen for three years in a row. The peak of Chinese greenhouse gas emissions may thus be much closer than the year 2030, as pledged by the Chinese government. Further negotiations are nonetheless not going to be easy. In particular, the controversy on traditional differentiation between industrialized and developing countries is far from having been laid to rest. It is now coming back at the technical level and with a much higher level of detail in issues such as what kind of information countries should provide on their NDCs and how NDC implementation should be monitored and reviewed internationally. Clarity needs to be achieved particularly quickly on the modalities for the 2018 facilitative dialogue. The Paris conference set 2018 as the next political moment to examine and hopefully increase the collective level of ambition. Countries’ pledges are currently far away from where they need to be to keep below the 1.5/2 degrees Celsius limit. The Intergovernmental Panel on Climate Change’s special report on the 1.5 degrees Celsius limit in 2018, as well as the Marrakech decision to adopt the Paris rulebook in in 2018, will serve to further galvanize attention. However, Marrakech failed to lay out a concrete roadmap for the shape of the facilitative dialogue and instead postponed the decision to the next COP. This postponement will not make it easier for countries to prepare their reports for the dialogue, as there will only be one year left before 2018. Some countries have decided to stay ahead of the wave, however, and make progressive moves towards early re-assessment of their NDCs. The declaration by the Climate Vulnerable Forum contains not only a commitment to 100 percent renewable energy but also a promise that these parties want to re-assess and strengthen their contributions as quickly as possible. (B) Impacts of the New US Administration Future progress under the UNFCCC will strongly depend on what stance the Trump administration in the United States takes. Whether or not the new administration will formally withdraw from the agreement, or even the UNFCC, remains to be seen. Certainly, however, the United States will cease to be a progressive leader. It could even become an obstructionist, in the worst case. A lot depends on the reaction of other states. If the new US administration is adamant about its withdrawal or obstructs any progress on the implementation of the Paris Agreement, a number of options exist to deal with the situation. Collaboration with sub-national authorities and non-state actors in the United States should be increased. If possible, they should be incorporated in the UNFCCC process more directly. If effective climate action proves to be impossible within the framework set by the Paris Agreement, alliances of frontrunner countries should move ahead and cooperate in other fora in parallel to the UNFCCC. To compensate for the potential competitiveness constraints of such a ‘minilateral’ approach, carbon border tax adjustments could be taken into account. (C) Non-State and Sub-National Actors and the Technical Examination Process The UNFCCC has, in recent years, come to recognize that many complementary governance initiatives are progressing in parallel to the UNFCCC, leading to an increasingly polycentric climate governance system. Given the increasing importance of non-party actors and the ever-growing number of transnational climate initiatives, the COP should decide to establish the TEP permanently alongside the Paris Agreement. Moreover, the current institutional set-up is focused on ‘orchestrating’ the diverse transnational governance initiatives—that is, to ‘enlist and support’ those initiatives in pursuit of the UNFCCC’s and the Paris Agreement’s governance goals. It is also necessary to think about how to feed back those advances into the intergovernmental negotiation process in a way that helps amplify national ambition. This could be achieved by incorporating an evaluation of transnational initiatives in the global stocktake under the Paris Agreement and, more explicitly, in the process of national communications that countries are required to submit periodically under the UNFCCC. Furthermore, lessons learned from transnational governance initiatives could provide inputs to the expert reviews of national contributions under the Paris Agreement’s transparency mechanism. One further step would be to link the TEPs to the compliance mechanism of the Paris Agreement. Formulating recommendations or requirements based on experiences based on the results of the TEPs could strike a balance between the non-punitive and non-adversarial nature of the compliance committee, yet maintain some form of compulsion. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: email@example.com
Yearbook of International Environmental Law – Oxford University Press
Published: Dec 28, 2017
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