Caribbean Trade Law and Development

Category: COP21

  • Paris Climate Change Agreement Enters into Force: What next?

    Paris Climate Change Agreement Enters into Force: What next?

    Alicia Nicholls

    “Humanity will look back on November 4, 2016, as the day that countries of the world shut the door on inevitable climate disaster and set off with determination towards a sustainable future.” – Joint Statement by Patricia Espinosa, UNFCCC Executive Secretary and Salaheddine Mezouar, President of COP22 and Minister of Foreign Affairs and Cooperation of the Kingdom of Morocco

    It is with these poignant words that United Nations (UN) Climate Chief, Patricia Espinosa, and President of COP22 and Minister of Foreign Affairs and Cooperation of the Kingdom of Morroco,  Salaheddine Mezouar, heralded the entry into force of the Paris Agreement just shy of twelve months after it was agreed to by nearly 200 parties at the UNFCCC’s Twenty-first Conference of the Parties (COP-21) in Paris, December 2015. November 4 was indeed a momentous day for the global community and planet Earth and the Agreement’s early entry into force signals countries’ strong stated commitment to global climate action. However, the hard work now begins.

    Background

    The historic Paris Agreement sets the overarching framework for global climate action. It is the culmination of years of hard-fought negotiations and compromise. Inter alia, countries around the world have committed themselves to “holding the increase in the global average temperature to well below 2 degrees Celsius above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5  degrees Celsius.”

    This more ambitious latter threshold of “1.5 degrees Celsius” was strongly advocated for by Small Island Developing States (SIDS) which, despite their negligible contribution to global greenhouse gas emissions, are the most vulnerable to the adverse and deadly effects of climate change. This harsh reality was reiterated in October 2016 when Haiti was struck by Hurricane Matthew, which took 1,000 innocent lives and has left 800,000 persons without food. The Bahamas, parts of Cuba and also of the southeastern United States also felt some of Matthew’s fury. Outside of more devastating weather events and changing weather patterns, some of the other effects of climate change include coral bleaching, sea level rise and beach erosion, which have implications for fisheries, tourism and agriculture, industries upon which many small states’ economies and livelihoods depend.

    This universally accepted climate change accord was signed by over 190 parties on Earth Day (April 1, 2016). However, the Agreement could have only entered into force once at least 55 countries accounting for at least an estimated 55% of global greenhouse gas emissions had ratified the Agreement. This threshold was reached on October 5, 2016 and the Agreement entered into force 30 days later on November 4, 2016. According to UNFCCC, ninety-seven (97) countries accounting for an estimated two-thirds of global greenhouse gas emissions have ratified. Most major  greenhouse gas emitting parties, including the US, China, the European Union and India, have ratified the Agreement.

    It’s Show time!

    It is one thing to sign off on the dotted line. It is another thing to actually implement the Agreement. In regards to the fight against climate change, we are quickly reaching the point of no return. Here are some not so fun stats:

    • Global greenhouse gas emissions, including CO2 emission levels, have continued to rise. The World Meterological Organisation (WMO) reported that globally average CO2 levels reached 400 parts per million for the first time in 2015 and in 2016 again due to El Nino.
    • 2015 was the hottest year on record, surpassed only by the first six-months of 2016.
    • According to NASA, global  surface temperatures continue to rise, while “[f]ive of the first six months of 2016 also set records for the smallest respective monthly Arctic sea ice extent since consistent satellite records began in 1979”.

    As United Nations Secretary General, Ban Ki-Moon is reported to have said, “[w]e remain in a race against time”.

    Even more concerning is that current emissions reduction targets pledged  by counties in their Nationally Determined Contributions are not enough to maintain the temperature increase to the ambitious levels set by the Paris Agreement. This was reconfirmed by the United Nations Environment Programme (UNEP) in its most recent Emissions Gap Report released the day before the Paris Agreement entered into force, which stated as follows:

    Even if fully implemented, the unconditional Intended Nationally Determined Contributions are only consistent with staying below an increase in temperature of 3.2°C by 2100 and 3.0°C, if conditional Intended Nationally Determined Contributions are included (page xvii).

    Another issue which is critical for developing countries’ efforts towards transitioning to low carbon and climate-resilient development is that of climate change financing. This is particularly important for SIDS, some of which are highly-indebted and with limited capacity to mobilise adequate domestic financing to fund their climate change adaptation and mitigation needs. Reiterating a promise made at Copenhagen and Cancun, developed countries have pledged in the Paris Agreement to jointly mobilise US$100 billion a year in climate change finance by 2020 from a variety of sources.

    However, some non-governmental organisations (NGOs) have argued that the US$100 billion annual goal is not nearly enough. There may be some merit to this argument. For example, a 2013 report by the World Economic Forum (WEF) estimated that “[i]nfrastructure investment required for sectors such as agriculture, transport, power and water under current growth projections stands at about US$ 5 trillion per year to 2020.”

    There is, however, some encouraging news. The Global Trends in Renewable Energy Investment Report 2016 reported that in 2015, investments in renewable energy reached nearly $286 billion, more than six times more than in 2004. Moreover, for the first time, more than half of all added power generation capacity came from renewables.

    So what is next?

    The modalities for the Agreement’s implementation will be top of mind when the latest round of UN Climate talks commence this week in Marrakech, Morocco. Three critical sets of UN climate meetings will be occurring:

    • The twenty-second session of the Conference of the Parties (COP 22)
    • The twelfth session of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP 12)
    • The first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA 1).

    The provisional agendas for each set of meetings are available on UNFCCC’s website. In regards to CMA1’s agenda, they are expected to “consider and adopt decisions on the modalities, procedures and guidelines on the implementation of the Paris Agreement” in addition to organisational and other matters.

    The elephant in the room is the upcoming US presidential election. The US is the world’s largest greenhouse gas emitter, accounting for an estimated 17% of global greenhouse gas emissions. Its future climate action will be determined by the results of Tuesday’s poll. President Obama has pledged to cut U.S. Climate Pollution by 26-28 percent from 2005 levels by 2025.

    In complete contrast from current US climate policy, the Republican presidential nominee, Mr. Donald Trump, has famously called climate change a “Chinese hoax” and has gone as far as threatened to pull the US out of the Agreement. Although it would take about four years before the US can formally withdraw from the Paris Agreement, in the intervening time, Mr. Trump could still undo the US’ progress on climate change action by overturning the executive actions President Obama has implemented to fight climate change, cancelling funding for clean energy initiatives, and reducing and eliminating aid to developing countries for climate change adaptation and mitigation.

    Therefore, as I argued in a previous post, the future of US and global climate action, will depend significantly on the outcome of Tuesday’s poll.

    Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

  • Climate Change, the US Elections and Small Island Developing States’ Survival

    Climate Change, the US Elections and Small Island Developing States’ Survival

    Alicia Nicholls

    “We are the first generation to be able to end poverty, and the last generation that can take steps to avoid the worst impacts of climate change. Future generations will judge us harshly if we fail to uphold our moral and historical responsibilities.” – Ban Ki-Moon, Secretary General of the United Nations.

    In a step that was both historic and symbolic, the Presidents of the United States (US) and China last week ratified the Paris Agreement ahead of the on-going G20 summit in Hangzhou, China. This single showing of solidarity by the world’s two largest industrialised powers was welcomed news for the small island developing states (SIDS) such as those in the Caribbean, Pacific and the Africa, Indian Ocean, Mediterranean and South China Sea (AIMS) states. Through the 44-member Alliance of Small Island States (AOSIS), SIDS  pushed not only for the conclusion of the Paris Agreement but insisted on the inclusion of language in the Agreement in which parties endeavored to “pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels” (Article 2(a) of the Paris Agreement).

    SIDS are the least culpable but most physically and economically vulnerable to the adverse effects of climate change. Rising sea levels have dislocated coastal communities and threaten the territorial integrity of the Pacific states of Kiribati and the Marshall Islands. Earlier this year, Cyclone Winston caused US1.4billion in damage, with the highest economic and human toll in Fiji, while Tropical Storm Erika in 2015 cost the Caribbean state of Dominica nearly half of its GDP. However, as the story of a remote Alaskan village which has voted to relocate from their ancestral home because of sea level rise shows, climate change is not a SIDS’ problem alone. It is a cross-cutting global issue which has implications not just for the global environment but for human health, security, sustainable development and economic growth.

    So what does all of this have to do with the upcoming election for the 45th President of the US? Well, if one considers the wide disparity in climate change rhetoric and policy proposals between the two major candidates running for the Oval Office, it is pellucid that the election of either Mrs. Clinton or Mr. Trump is the difference between strong US support for reducing GHG emissions and leading the global fight against climate change on the one hand, and on the other, a reversal of the gains that have been hard fought for. In other words, the future of SIDS’ survival could depend on the outcome of the US election.

    Current US climate change policy

    Current US policy supports global climate change efforts. US President Obama’s three-pronged Climate Action Plan commits to cutting carbon pollution in America, preparing the US for the impacts of climate change, and critically for the Paris Agreement, leading international efforts to address Global Climate Change. This is a policy position which Democratic candidate, Hillary Clinton, has pledged to honour should she be elected to office by the American people this November.

    The Paris Agreement was concluded in December 2015 at the end of the United Nations Framework Convention on Climate Change (UNFCCC) Twenty-first session of the Conference of the Parties (COP21). Since the Agreement’s opening for signature in April 2016, over 180 states have signed. However, as of September 3, only 26 states so far (representing 39% of global emissions) have ratified it. The recent ratification by the US and China, which together account for about nearly 40% of GHG emissions, is a significant step towards the threshold needed for the Agreement to come into effect; ratification by at least 55 countries which contribute to 55% of global GHG emissions. According to a White House press release on the US-China Climate Change cooperation outcomes, the two countries “committed to working bilaterally and with other countries to advance the post-Paris negotiation process and to achieve successful outcomes this year in related multilateral fora”.

    Climate Change Platforms of Candidates 

    While a four-way race in theory, the candidates of the two major parties, the Democratic Party and the Republican Party, still have a large lead ahead of the two other candidates (Jill Stein of the Green Party and Gary Johnson of the Libertarian Party). Perhaps never before has there been such wide disparity in the positions of two US presidential candidates on the issue of climate change. The democratic candidate, former US Secretary of State, Hillary Clinton, has vowed to “take on the threat of climate change and make America the world’s clean energy superpower”. Some of her major policy initiatives to this end are: launching a $60 billion Clean Energy Challenge, investing in clean energy production and infrastructure, cutting methane emissions across the economy and prioritising environmental and climate justice, inter alia.

    This stands in stark contrast to the stated position of Republican candidate, billionaire real estate mogul Donald Trump, who, inter alia, tweeted in November 2012 that “the concept of global warming was created by and for the Chinese in order to make US manufacturing non-competitive”. He later said he was joking. Unfortunately, for the world, and especially for SIDS, climate change is no joking matter.

    While Trump’s skepticism on the anthropogenic nature of climate change is not dissimilar to that of most Congressional Republicans, a Sierra Club report has rightly stated that “if elected, Trump would be the only world leader to deny the science of climate change.” He has also denounced the Paris Agreement as a bad deal for America, ascertaining it “gives foreign bureaucrats control over how much energy we use right here in America”, a claim soundly and poignantly rejected by the US special envoy for climate change (2009-2016) in a Washington Post op-ed. Mr. Trump first asserted he would renegotiate the Agreement and later stated that he would ‘cancel‘ the US’ participation in it. He has railed against environmental regulations. His proposals to reverse President Obama’s climate change initiatives, abolish the US Environmental Protection Agency, save the coal industry and continue subsidies to the oil and gas industry would jeopardise the US’s current emission reduction targets.

    Implications for SIDS of US Climate Policy Change

    Should a President Trump, if elected, implement his stated policies, not only will there be a 360 degree reversal of the US’ current commitment to meeting its emission-reduction targets, but an end to US cooperation or support for the global climate change agenda. If this happens, there will be little the world could do,besides raise universal condemnation. This is because one weakness of the Paris Agreement is that there is no binding enforcement mechanism in the agreement to force compliance of countries to the emissions limits they set for themselves. Already, there is skepticism that the current “nationally determined contributions” are not ambitious enough to conform with the Agreement’s goal of “holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels” (Article 2(a) of the Paris Agreement).

    Secondly, should the US withdraw from the Agreement or renege on its commitments, some other high emitters may feel less of a moral imperative to follow through with their own commitments or may withdraw as well.

    Thirdly, climate change finance is important for SIDS’ adaptation to, and mitigation of, the effects of climate change. Under Article 9 of the Paris Agreement developed country members are obligated to provide “financial resources to assist developing country Parties with respect to both mitigation and adaptation in continuation of their existing obligations under the Convention”.

    Caribbean countries  and several other vulnerable states around the world have benefited significantly over the years from the US Department of International Aid (USAID)’s projects which aim to build countries’ resilience to climate change. Climate change was one of the Obama Administration’s priorities for DA funding with $310.3 million in funding requested for Global Climate Change in the FY2017 Budget Request. The future of USAID aid flows to developing countries for climate change adaptation is bleak if current US policy towards climate change action changes under a Trump administration.

    What then for SIDS?

    The aim of this article is NOT to be an endorsement of either of the two major candidates running for the upcoming US Presidential election, neither is it an attempt to influence the American people’s decision. The US election is a democratic choice for the American people and only they can decide which of the four candidates’ platform better serves their interests. What this article attempts to do is to discuss and show the wide policy differences which exist between the two candidates of the major parties on climate change, and argues that any negative change in current US climate change policy will have far-reaching implications for the global climate change fight.

    There are a few nuggets of hope, however.  Because of Article 28 of the Paris Agreement, a President Trump would have to wait at least three years from the date the Agreement has entered into force in the US before he could notify his intention to withdraw the US from the Agreement and it would take another year for such withdrawal to come into effect.Any US withdrawal from the Paris Agreement is unlikely to be a popular move among Americans. Recent US polling data show there is grassroots support for Climate Change. Action. This includes not just environmental lobbies but the ordinary man on the street. There would also be universal condemnation by other major countries.

    SIDS may have a few allies in the fight within the US. Outside of federal action, some states, like Oregon, have quite robust climate change initiatives. Moreover, faced with pressure from more discerning and environmentally-aware consumers, more businesses and large corporations are forced to demonstrate their use of energy-friendly processes and products.

    Despite this, however, besides lobbying and moral suasion by other countries, there is little SIDS  can realistically do to change US climate change policy should there be a reversal. The vote for US president is a decision only the US electorate can make. However, for SIDS it could be a matter of survival.

    Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

  • Over 170 Countries Sign the Paris Agreement: What next for SIDS?

    Alicia Nicholls

    Earth Day 2016 was extra symbolic this year. On this day (April 22nd), 174 countries plus the European Union signed the Paris Agreement at a High-Level Signature Ceremony at the United Nations’ Headquarters in New York. Among the signatories were small island developing states (SIDS) from the Caribbean, the Pacific and the Indian Ocean, for whom climate change is a serious matter of survival.

    The Paris Agreement, which will replace the Kyoto Protocol when it comes into force, is a landmark climate change agreement which aims to strengthen the global response to climate change. Many years in the making, the Paris Agreement was concluded and adopted at the end of intense negotiations during the United Nations Framework Convention on Climate Change’s (UNFCCC) 21st annual Conference of the Parties (COP21) held in Paris last December.

    Climate change is a global problem with implications for us all. According to the United States’ National Oceanic and Atmospheric Administration (NOAA) and NASA, 2015 was the hottest year on record since the start of record keeping in 1880. If these first few months of 2016 are anything to go by, this year may shatter that record handily.

    SIDS which are responsible for less than 1% of global GHG emissions, are the most vulnerable to its adverse effects. Besides sea level rise, extreme weather events have caused tremendous economic devastation and loss of human life. The Rapid Impact Assessment showed that Tropical Storm Erika cost Dominica 90% of its gross domestic product (GDP). Earlier this year, the Category 5 Severe Tropical Cyclone Winston ravaged the Pacific SIDS of Fiji, Vanuatu, Tonga and Niue. In Fiji the storm left 44 dead, destroyed over 31,000 homes and caused 1 billion USD in damage.

    For SIDS, climate change is an existential threat to our economies, societies and survival, which led our states to push the “1.5 to stay alive” campaign. To keep the temperature increase to just 1.5 percent above pre-industrial levels or even 2 percent, signature of the Paris Agreement is just one step.

    Signature is not the same as ratification

    The turnout for the signature of the Paris Agreement is reported to be a record number for a new treaty. However, signature does not make a treaty legally binding on a signatory party unless the Treaty specifically provides for this. In the case of most treaties, like the Paris Agreement, it is only after a party has deposited its instrument of ratification (or accession, approval or accession) that it has consented to be bound by the treaty.

    The ease of the domestic ratification process depends on the legal system and domestic political processes in each state. In the US, the type of international agreement determines the process. Article II, section 2 of the US Constitution requires approval of two-thirds of the US Senate for a treaty to be approved. Executive type agreements do not require congressional approval. Given the strong objection to the Paris Agreement in the Republican-controlled Congress, the US negotiators were careful to avoid any language or provisions, such as mandatory emission reduction targets, which would require Congressional approval of the agreement. However, the US has not yet ratified the Agreement and the upcoming US Presidential election this November could lead to a dramatic reversal in US policy on climate change depending on whom is elected president. No one wants a repeat of the Kyoto Protocol; the US had signed it but did not ratify and was therefore not bound by the Agreement.

    According to Article 21, the Paris Agreement will enter into force 30 days after at least fifty-five parties which account for at least fifty-five percent of total global greenhouse gas emissions (GHG) have deposited instruments of ratification. As at the time of writing this article, 177 parties have signed the agreement, which represents the vast majority but not all the 195 countries which negotiated the agreement in December. Conspicuously absent from the  signatures are several major oil producing states, namely Nigeria, Saudi Arabia and Iraq. Signature will be open for one year until April 2017 so there is still time for more states to sign.

    Fifteen countries have so far ratified the Agreement, three of which with declarations. It is no surprise that SIDS led the way in the number of ratifications. Those countries which ratified already are the Marshall Islands, Nauru, Tuvalu, Palau, Somalia, Palestine, Barbados, Fiji, Grenada, St. Kitts & Nevis, Samoa, Maldives, St. Lucia, Mauritius and Belize.

    Scaling Up of Climate Action

    Even before the entry into force of the Agreement, countries will need to scale up their climate actions to reduce emissions. Prior to the conclusion of the Paris Agreement, most countries submitted their Intended Nationally Determined Contributions (INDCs) which set out their policies, targets and actions for contributing to the reduction of GHG emissions. In Barbados’ INDC, for example, the country intends to achieve an economy-wide reduction in GHG emissions of 44 percent compared to its business as usual (BAU) scenario by 2030. In absolute terms, this means an intended reduction of 23 percent compared to 2008 levels.

    However, the just released updated UN synthesis report of all INDCs communicated by Parties by 4 April 2016, a total of 189 Parties (96% of all Parties to the UNFCCC), found that the level of ambition is still not enough to lead to an increase of less than 2 degrees above pre-industrial levels. There is the need to deepen ambitions and convert intention to concrete actions and achievements. This will require planning, political will, cooperation among all stakeholders, the implementation of legislative frameworks and systems for monitoring progress, implementation and reporting.

    Of critical importance will be the level of reduction of GHG emissions  by countries, such as the US, China, India and in Europe, which account for over 50 percent of global GHG emissions. However, domestic politics within these countries could be an issue for meeting their goals. As an example, in August 2015, US President Obama and the US Environmental Protection Agency (EPA) announced the Clean Power Plan to lower US emissions by curbing carbon dioxide emissions from power plants through shifting from coal-fired power to renewable power. Some major fossil fuel producing states like West Virginia and Texas have challenged the administration’s plan and by a 5-4 decision the US Supreme Court issued a stay of the Clean Power Plan pending judicial review. Additionally, there is no guarantee that the next US president will be as committed to the climate change mitigation goals set out by the Obama administration to reduce emissions between 26 to 28 percent by 2025, which already is a modest target.

    Climate Finance for Adaptation and Mitigation

    SIDS require financing not just to build climate-resilient infrastructure but to transition to climate-resilient economies. One of the stated goals in the preamble of the Paris Agreement is to jointly provide USD 100 billion annually by 2020 for mitigation and adaptation, and to provide appropriate technology and capacity-building support.

    Many Caribbean States have been graduated from accessing grants and concessionary loans due to their relatively high gross domestic product per capita (GDP per capita), while their high levels of indebtedness also make borrowing on international markets difficult. While several climate change finance streams are available, including funding from Multilateral Development Banks, official development assistance and dedicated funds, some SIDS Governments have raised concern  that the red tape for accessing funds is often cumbersome.

    What next for SIDS?

    The signature of the Paris Agreement is just but one step. Though SIDS account for less than one percent of GHG emissions, we all have our part to play in lowering emissions and contributing to a climate-friendly future. Domestically, our governments need to focus on implementing our INDC commitments and encourage the use of climate friendly technologies, including in buildings, transportation and the agriculture, tourism and manufacturing sectors. This is not a task for governments alone, but will require continued cooperation with civil society, the business community and ordinary citizens.

    It also requires the continued encouragement of a shift from fossil fuels to renewable energy. In Barbados’ INDC, it was noted that energy consumption accounted for 72% of our GHG emissions in 2008, followed by the waste sector (16%). Disconcertingly, major players in the island’s solar energy industry have complained that falling oil prices have led to a decrease in solar installations. Barbados has been a leader in the solar industry, with a high level of solar water heater use which  saved the country a reported US$100 million on its fuel import bill in 2002. We cannot allow the drop in oil prices to allow us to lose sight of the necessity of shifting from fossil fuels for achieving our climate goals and preserving an environmentally-sustainable future for the next generations.

    On the multilateral level, continued participation and advocacy in climate change talks are a must for SIDS governments. As I had indicated in my previous article, the Paris Agreement is an important step but its efficacy will depend on its ratification and implementation and subsequent follow-up, especially by those countries which contribute the most to GHG emissions. The future of our states, and the world, depends on it.

    The full text of the Paris Agreement may be found here. Barbados’ statement at the High-level signing ceremony may be found here.

    Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

  • Upcoming WTO Ministerial in Nairobi: Does the COP21 offer any lessons for progress?

    Alicia Nicholls

    Coming on the heels of the successful conclusion of a not perfect but monumental Paris Agreement at COP21 setting the framework for post-2015 global cooperation on climate change, the eyes of the world have now turned to another sphere of international cooperation this week – trade. On December 15-18th trade ministers and delegates from over 160 World Trade Organisation member countries will gather in Nairobi, Kenya, for the WTO’s tenth annual Ministerial Conference.

    The Nairobi Ministerial seeks to be a turning point in the currently deadlocked multilateral trade negotiations. While climate change and trade are two related but separate issues, the success at Paris causes one to wonder whether there are any take-away lessons from COP21 that can be used in achieving a substantive outcome in Nairobi.

    In July Director General of the WTO, Roberto Azevedo lamented the lack of sufficient progress to deliver a work programme on the remaining issues of the Doha Development Agenda (DDA) by the 31 July deadline. More recently on December 11,  he noted while there were no deliverables for Nairobi, there was some hope that hard work could lead to some potential outcomes; a package of measures for Least Developed Countries (LDCs), an agreement on export competition in agriculture, special safeguard mechanisms and public stockholding for food security purposes. Even so, agreement will not be easy. Some states have also been working on plurilateral agreements which include the Trade in Services Agreement (TISA), the Information Technology Agreement-2 (ITA-2) and the Agreement in Environmental Goods and Services.

    The Paris Agreement was finalised after two intense weeks but was twenty years in the making. Like the pathway to the conclusion of the Paris Agreement, the pathway towards what we all hope will eventually be a final Doha Agreement one day has been one fraught with frustration, failure,  missed deadlines and sparse successes here and there.

    The 10th Ministerial will be the sixth ministerial conference to have been held since the Doha Agenda was launched at the 4th Ministerial in Doha, Qatar in 2001. The Doha Agenda encompasses an ambitious set of 21 issues, including agriculture, non-agricultural market access (NAMA), anti-dumping, subsidies and safeguards, cotton, dispute settlement, e-commerce, the environment, government procurement and information technology agreements, intellectual property, LDCs, services and trade facilitation.  Agreement is to be achieved by consensus (agreement by all) and all of the negotiations are to be treated as components of a ‘single undertaking’, although there is also legal provision for an early harvest under Paragraph 47 of the Doha Ministerial Declaration.

    Nearly fifteen years after the start of negotiations, there has been little success to show. The notable exception is the Trade Facilitation Agreement which was concluded at the Bali Ministerial in 2013 and which has only been ratified by 57 of the WTO’s 162 members to date. There are also draft decisions like those on e-commerce and on assisting the integration of small economies to be adopted at the Ministerial this week. LDCs also scored some victory as the TRIPs Council extended until January 2033 the period during which key provisions of the TRIPS Agreement do not apply to pharmaceutical products in LDCs. But when considered against the ambitious scope which Doha had set for itself, these “successes” are not even a tip of the iceberg.

    High level of symbolism

    In both the COP21 and upcoming Nairobi Ministerial there is a level of symbolism attached to the points in time in which they are being held. In Paris, the delegates recognised that now more than ever was the opportunity for an agreement on a framework for climate change cooperation before it was too late to reverse course.

    Turning to the upcoming WTO Ministerial, not only is this the twentieth anniversary of the WTO’s existence but the first time that a WTO Ministerial will take place on the African continent. President Kenyatta’s message sums up well the hopes that African countries, which comprise 43 of the WTO’s member states, have about the significance of the WTO’s first ministerial in Africa:

    “This Ministerial Conference will be the first to take place on African soil, a historic occasion, which will do much to help further integrate the African continent into the global trading system.”

    Less optimistically, the Nairobi Ministerial  comes against the backdrop of a slowdown in global trade growth and within an uncertain global economy. Given the important role of trade in the global economy, any further movement on the negotiations front would be a positive signal.

    Diverse set of countries

    COP21 had brought together 196 countries ranging the gamut from small island developing states (SIDS), landlocked states, to industrialised nations to least-developed countries (LDCs).

    Similarly, the WTO’s membership, which will increase to 164 with the accession of two LDCS Afghanistan and Liberia, comprises a geographically diverse set of states whose varying interests and perspectives can be seen from just a cursory look at the various negotiating groups. This makes achievement of consensus on such a wide range of issues even more elusive. Large developing countries like India and China are now major players in global trade which has compelled some developed countries to object to their continued classification as “developing” countries.

    Developmental thrust but diverging interests

    In the COP21 negotiations there were several thorny issues which at some stage seemed irreconcilable. Compromise was eventually achieved in the final text. Likewise, the paralysis in the Doha Round is due to entrenched positions by both developed and developing countries on politically sensitive issues. In summary, developing nations believe that the demands by developed nations are not taking into account their development levels and objectives, while developed nations argue developing nations are not being ambitious enough in their commitments. An unfortunate consequence therefore is that members have been taking advantage of the issue-linkages by tying outcomes in one area to negotiations in other areas.

    The Chairman of the Agriculture Negotiating Group reported as of December 7 that “[d]espite the intensive consultations and progress made, there is still no appreciable convergence on any of the issues Members are working on, with a limited exception in the case of cotton”.

    Agriculture is one of the most politically sensitive issues for states and the major issues surround public stockholding, export competition, domestic support and access and the special safeguard mechanism. Any binding commitments on these issues are not simply words on a paper but will have implications for developing countries’ local farming industries, their rural poor and food security. The G-33 proposal reintroduced in November 2014 has again argued that public stockholding for food security purposes should be designated as subsidies that cause no or minimum trade distortion, the so-called “Green Box” which are except from ceilings or reductions. The ‘peace clause’, which India was able to secure at the Bali Ministerial, is only a temporary solution.  The G-33 also call for a special safeguard mechanism in agriculture whereby developing countries, with special flexibilities given to LDCs and SVEs, can temporarily raise tariffs on farm goods in response to any sudden import surges or price reductions. However, according to the latest Chairman’s report, other Members are opposed to the “idea of an outcome on SSM at MC10 in the absence of a broader outcome on agriculture market access”. Members are also still unable to come to any form of consensus on the issue of domestic support and market access.

    Another issue of importance to developing countries, including SVEs, is on improved flexibilities for tariff cuts in NAMA. They have been successful so far in having the current draft negotiating text (Rev.4) contain explicit mention of SVEs and specific treatment in market access, domestic support and export competition. However, the Chairman of the NAMA negotiating group reported on December 7 that “real progress on NAMA has remained elusive since the 9th Ministerial Conference in Bali” and that negotiations and ambition in NAMA appear to be linked to the agriculture negotiations.

    There are 48 WTO members which are LDCs, 33 of which are African states. Critically for LDCs would be the completion of a package of measures specific to LDCs which provides duty-free, quota-free market access for LDC cotton and cotton products, DFQF access to 100% of products originating from LDCs and preferential rules of origin which would ensure that LDCs can take advantage of any market access concessions. The Ministerial Conference in Bali in 2013 had called on developed country members, which had not yet done so, to provide DFQF access to least 97% of products originating from LDCs. Most countries provide some DFQF access to LDC goods, including China and India, but these are still far short of the requirement and less than the 100% which years ago Millennium Development Goal 8 had called for.

    For Small Vulnerable Economies (SVEs), besides work on the work programme for SVEs and recognition of their unique challenges through greater flexibilities and longer commitment periods, a key issue is on rules for fisheries subsidies. The fishing industry is important for SVEs as a source of food and nutrition, economic livelihood, community stability and as a contributor to GDP. Africa, Caribbean and Pacific (ACP) countries tabled a proposal which includes areas on fisheries subsidies to be addressed, including IUU fishing. The fisheries subsidies are being negotiated in the Rules Negotiations which also includes the issues of anti-dumping and countervailing measures. The Chairman Report notes that some links have been drawn by Members between outcomes in anti-dumping and fisheries while there is disagreement as to the inclusion and scope of transparency rules as a focus of the negotiating group’s work and as an outcome of the Rules negotiations. Progress on service negotiations has been non-existent for some time.

    Need for compromise

    As shown, there is a wide range of outstanding issues to be discussed at Nairobi and consensus must be reached on all for there to be any agreement. On most fronts, there are wide cleavages between negotiating positions which seem almost impossible to be bridged. Wide divergences existed in the COP21 negotiations as well, particularly on the issue of the target limit for temperature increase, loss and damage and climate finance. However, in the end what made the Paris Agreement achievable was compromise.

    Are WTO members willing to compromise to achieve outcomes? In many cases, it does not appear so. As it stands, there seems to be a splintering of opinion on whether the Doha Agenda should be pursued as the framework for the post-2015 trading agenda. ICTSD Bridges reported developing countries as expressing concern that developed countries have indicated that they “would not join a consensus on a Nairobi declaration that reaffirms the Doha declaration or subsequent ministerial communiques that mention the ongoing Doha Round of talks”.  Moving away from the Doha Agenda, an agenda which is developmental in its outlook, is a move which developing countries should not support. Among other things the Doha Ministerial Declaration reaffirms parties commitment to the objective of sustainable development, confirms that technical cooperation and capacity building are core elements of the development dimension of the multilateral trading system, reaffirms that provisions for special and differential treatment are an integral part of the WTO Agreements and agrees to a work programme, under the auspices of the General Council, to examine issues relating to the trade of small economies.

    There has also been calls by developed countries for an expansion of the current negotiating agenda to include the “Singapore” issues of competition policy, investment measures and government procurement and newer issues which take into account the growing digital economy. Developing countries are firmly against the inclusion of any extra issues, especially the “Singapore” issues, out of fears that any binding obligations in these areas would further erode policy space. Others fear that their limited capacity to implement obligations on these areas would put them at risk of having claims brought against them in the WTO dispute settlement mechanism. Moreover, developing countries are also against the widening of the agenda to include any additional areas when developed countries have shown little interest in compromising on existing areas such as on the large agricultural subsidies they give to their farmers.

    Frustration with the deadlock in the Doha negotiations has led to an increase in regional trade negotiations, evidenced by the trend towards ‘mega regional trade agreements’ such as the recently concluded Trans-Pacific Partnership Agreement. While I do not necessarily see these mega agreements as threats to the multilateral trading system, the growing frustration with the current negotiations makes the need for Nairobi to be a turning point even more critical.

    The way forward?

    The Paris Agreement is by no means perfect but has been endorsed by both developed and developing states. The key success factors at the COP21 which led to an agreement were a shared vision that the sustainable future of the world depended on a deal at that moment, a group of States which were prepared to accept nothing less than a deal which put the planet and their survival first, and the political will on the part of all States to put aside narrow political and national interests to come up with a meaningful agreement, even where that necessitated some compromise on politically sensitive issues.

    In the case of the Nairobi Ministerial, some of these factors exist. This year is the twentieth anniversary of the WTO’s existence. There is recognition at least in principle that actions taken at Nairobi will affect the course of the global trade agenda and that the first WTO ministerial conference on African soil is the opportune moment for pushing for outcomes which will go a long way in integrating African countries into the global trading system. Moreover, developing countries, including African LDCs, have insisted and continue to insist that any outcomes must be developmental in focus. The requirement of consensus means that compromise by both developed and developing countries will be necessary to bridge the wide gaps between members’ negotiating positions but not where such compromise defeats development objectives. Any Nairobi outcomes must be ambitious but fair, global in outlook but take into consideration the vulnerabilities and capabilities of developing countries (particularly SVEs and LDCs) and complement the post-2015 sustainable development agenda. In the end, as always, it will all come down to political will.

    Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. Please note that the views expressed in this article are solely hers. You can also read more of her commentaries and follow her on Twitter @LicyLaw.