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COP23: Five Negotiation Priorities for Small Island Developing States (SIDS)

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Alicia Nicholls

In about a week’s time, delegates from over 190 countries will convene in Bonn, Germany for the 23rd Conference of the Parties (COP23) to the United Nations Framework Convention on Climate Change (UNFCCC). During this round of climate negotiations, which will last from November 6-17th, the parties will continue work on implementation guidelines for the Paris Climate Change Agreement signed at COP21 in December 2015.

Despite United States’ President Donald Trump’s statement in June that the United States would be withdrawing from the Paris Agreement, there is some cause for optimism that this year’s COP negotiations will bear fruit. For the first time, a small island developing state (SIDS), the Republic of Fiji, has assumed the presidency of COP and brings to this task first-hand experience from the front lines of the climate change battle.

Secondly, recent natural disasters worldwide have brought increased international attention to the devastating effects of climate change and the need for urgent action on reducing global greenhouse gas emissions. This point was well-made by President of Fiji, Mr. Frank Bainimarama, who stated at a Pre-COP Ministerial Meeting held on October 17 in Fiji that:

“We can no longer ignore this crisis. Whether it is fires in California, Portugal and Spain. Flooding in Nigeria, India and Bangladesh. The dramatic Arctic melt. Ice breaking off the continent of Antarctica. The recent hurricanes that devastated the Caribbean and the southern United States. Or the hurricane that has just struck Ireland and Scotland – the tenth hurricane of the Atlantic season this year. It’s hard to find any part of the world that is unaffected by these events.”

Thirdly, except for the US, political will among the world’s most powerful nations has coalesced on the side of climate action. The 19 other G20 countries reaffirmed their “strong commitment” to the Paris Agreement, calling it “irreversible” in their Summit Declaration following the Hamburg meeting in July.

Below are five key likely priorities for SIDS as they go into the negotiations:

  1. Scaling up Climate Finance to SIDS

At COP15 in 2009, developed countries committed to jointly mobilise USD 100 billion annually by 2020 to meet the mitigation and adaptation needs of developing countries. According to an OECD study, climate-related concessional finance has increased in both absolute terms and as a percentage of total concessional development finance, however annual commitments for 2014 were still 20% of the USD100 billion goal.

SIDS often find it difficult to attract private financial inflows for development purposes due to their small size and economies, and current financing levels do not meet their current needs. Moreover, current graduation criteria have made some middle and upper income SIDS, like those in the Caribbean, ineligible for certain types of concessional financing.

Pledged contributions, whether to the Green Climate Fund or otherwise, also do not necessarily always lead to timely disbursement, and there is the need for guidelines and protocols for incorporating the Adaptation Fund established at COP7 into the Paris Agreement’s framework.

Finding innovative and effective ways to attract and increase financial flows, including from both public and private and bilateral and multilateral sources, will be key. For example, Fiji became the first developing country to issue a sovereign green bond, with technical support from the World Bank, to support the country’s mitigation and adaptation efforts.

  1. Loss and damage

Loss and damage was one of the most contentious topics in the negotiations leading up to the Paris Agreement and was strongly lobbied for by SIDS and LDCs as they are the least culpable but most vulnerable to the harshest impacts of climate change. The concept recognises that there is some irreversible damage which cannot be avoided through mitigation and adaptation strategies.

The Paris Agreement has recognised the concept of ‘loss and damage’ as a distinct concept of climate action and has made the Warsaw International Mechanism for Loss and Damage permanent. It, however, does not deal with liability or compensation, something which developed countries were adamant they did not wish to be included. The softer language used in Article 8, which, inter alia, itemises areas for cooperation and facilitation, is reflective of these developed country concerns.

The costliness of this year’s Atlantic hurricane season is an important background against which SIDS should call for greater discussion on concretely addressing loss and damage, including the successful launch of the Clearing House for Risk Transfer which is slated to take place at COP23.

  1. Adaptation and Mitigation

Developed countries’ continued and increased support will be necessary to assist SIDS in implementing national climate action plans, policies and projects in order to build climate resilience. This support for adaptation and mitigation includes not just financial support, but technology transfer and capacity building and technical assistance.

Certain groups within societies are particularly vulnerable to climate change, including women and children, the disabled and indigenous and rural communities. As such, the COP23 negotiations will involve operationalizing the Gender Action Plan and the Local Communities and Indigenous Peoples Platforms.

  1. More ambitious NDCs

Some 163 parties have already submitted their Nationally Determined Contributions which outline their emission reduction targets toward meeting the goal set out in Article 2 of the Paris Agreement of keeping average global temperature increase to no more than 2 degrees Celsius above pre-industrial levels and as close as possible to 1.5 degrees Celsius. These NDCs may be found at the interim NDC registry.

However, the May 2016 synthesis report on the aggregate effect of INDCs showed that a higher level of ambition will be needed in order to reach the goal in Article 2.

SIDS will want all parties to communicate to more ambitious NDCs after 2018 in order to meet the temperature goals in the Agreement and in keeping with the Article 4(3) commitment of communicating successively progressive NDCs.

  1. Preparations for Facilitative Dialogue 2018

The Facilitative Dialogue which will take place in 2018 will be the first initial opportunity under the Paris Agreement to take stock of parties’ collective progress in a transparent manner towards meeting the Agreement’s long-term goal and inform the preparation of NDCs. It will be a precursor to the Global Stock Take, the first of which will take place in 2023 and will occur every five years thereafter.

The Facilitative Dialogue 2018 will be launched at COP23 and parties will need to organise and decide on the procedures, events and expected outcomes in time for its convening. The President of Fiji, who must be commended on his country’s excellent work on preparations for COP23 to date, has indicated that these talks will approached on the principle of ‘talanoa’, a Pacific concept which values inclusive, participatory and transparent dialogue.

A copy of the negotiating agenda for COP23 (current as at this date) may be viewed 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.

 

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Paris Climate Change Agreement Enters into Force: What next?

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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.

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

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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.

COP21 Paris Agreement: A Partial but Important Victory for SIDS and the World but just the beginning

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Alicia Nicholls

Some two decades in the making, delegates from 196 countries around the world made history today by voting to adopt the Paris Agreement to the United Nations Framework Convention on Climate Change (UNFCCC), an internationally binding framework for the post-2015 global climate agenda.

Getting ten people in a room to agree on something is a challenge in itself, far less getting delegates from almost 200 countries with different interests, perspectives and levels of development to agree on an international strategy for tackling climate change. Going into the COP21 there was broad international consensus on the closing window for reversing the deadly course towards unsustainable high levels of global temperature increase and general recognition that while small island developing states (SIDS) contributed little to the problem of climate change, they are the ones which are already suffering the most devastating effects of climate change. However, drilling down into the key issues there were thorny areas of divergence which led to several compromises in the final text.

My personal view, which I will argue in this article, is that while the Paris Agreement is by no means perfect, the fact that parties were able to actually achieve an agreement and its inclusion of many of the concerns which SIDS have advocated for even in compromise form in some cases, makes it a partial but important  first step for tackling what has been recognised as one of the greatest threats to our sustainable future.

Long Term Temperature Increase Target of 1.5 degrees Celsius

A major victory and negotiating point for SIDS through its campaign “1.5 to stay alive” was for commitment by parties to hold the increase in global average temperature to no more than 1.5 degrees Celsius above pre-industrial levels. In support of its negotiating position, SIDS relied on the Structured Expert Dialogue on the 2013-2015 Review of the long term global temperature goal which argued that the global consensus of limiting the increase in average global temperatures to 2 degrees Celsius was inadequate and would threaten the sustainability of both SIDS and low-lying coastal States. This was a sticking point in the negotiations. In the end at article 2(1)(a) the Paris Agreement parties agreed to a compromise position which aims to hold 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. While this is not entirely what SIDS were hoping for it is a lot more ambitious than what most had expected.

Recognition of Loss and Damage

Another major issue for SIDS was for the agreement to establish an international mechanism to address loss and damage which is treated separately from adaptation. They relied again on the findings of the Structured Expert Dialogue on the 2013-2015 Review which showed that even in low emission scenarios SIDS will still experience substantial loss and damage. As such they argued for recognition by industrialised States of liability and compensation. The worst greenhouse gas emitters US, China and the EU countries were absolutely against any form of compensation or liability.

Article 8 of the Paris Agreement is a mixed victory for SIDS in that parties recognize the importance of “averting, minimizing and addressing loss and damage associated with the adverse effects of climate change”. The Warsaw International Mechanism for Loss and Damage, established at COP19 in 2013, will be one of the mechanisms for facilitation and cooperation and may be enhanced or strengthened as determined by the Parties represents a compromise on the issue of loss and damage. However, in paragraph 52 of the preamble it includes that Article 8 “does not involve or provide a basis for any liability or compensation”. This is likely a compromise for those countries which opposed inclusion of any liability or compensation. While this is a weakness, it is likely this will not be the end of this issue and that SIDS will continue to push for this in the reviews.

Climate Finance

Even though developed States pledged to mobilise USD 100 billion dollars a year in financing for climate change, SIDS have continuously argued about the limited financial resources which have actually been made available to assist in their mitigation of, and adaptation to, climate change. In Article 9, developed country Parties agreed to scale up efforts to provide financial resources to assist developing country Parties with respect to both mitigation and adaptation and should continue to take the lead in mobilizing climate finance from a wide variety of sources, instruments and channels. Other Parties are encouraged to provide or continue to provide such support voluntarily. Developed countries are to report on support on a biennial basis. Other Parties  are to do so voluntarily. The Financial Mechanism of the Convention is to serve as the financial mechanism for the Paris Agreement.

In paragraph 115 of the preamble, developed country Parties are to scale up their level of financial support with a goal of USD 100 billion annually by 2020 for mitigation and adaptation. Interestingly, this bit about the USD100 billion is included in the preamble to the Agreement and not as a binding provision within the text itself which has an impact on its enforceability. A stronger more robust provision would have been desired.

Technology Transfer and Capacity-building support

SIDS were insistent on the inclusion of adequate provisions for adaptation to assist them in their adaptation to climate change, including provisions on technology transfer and capacity-building support. Technology transfer is referenced both in the preamble and the actual text of the Paris Agreement. Article 10 of the Agreement requires parties to strengthen cooperative action on technology development and transfer. A Technology Mechanism and Technology Framework have been established under the Agreement to facilitate this, although the text does not detail how this technology transfer is to occur. Support, including financial support, is to be provided to developing country Parties for implementation. Article 11 of the Agreement itself does not speak to how capacity building is to take place but leaves it up the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement to consider and adopt a decision on the initial institutional arrangements for capacity-building at its first session. It will be up to SIDS to keep pushing for further support for technology transfer and capacity-building support.

Voluntary Greenhouse Gas Emission Reductions

Though the parties recognise in the preamble that deep reductions in global emissions will be required in order to achieve the ultimate objective of the Convention and Article 4(4) of the main text requires developed country Parties to continue taking the lead by undertaking economy-wide absolute emission reduction targets, generally speaking the provisions on greenhouse gas emission reductions are voluntary, vague and crafted mostly in best endeavour language and not in the robust language climate activists and SIDS were hoping for.

Under Article 4(1) parties are to aim to reach global peaking of greenhouse gas emissions “as soon as possible”. Each Party is to prepare, communicate and maintain successive nationally determined contributions that it intends to achieve (Article 4(2)), with the further conditions that there should be progression in each of its contributions and that they should reflect its highest possible ambition. These are to take into consideration each country’s national circumstances and on the principle of differentiated responsibilities.

A mechanism to contribute to the mitigation of greenhouse gas emissions and support sustainable development has been established under the authority and guidance of the Conference of the Parties. However, it is unclear how this is to work. One positive point though is that a share of the proceeds from activities under the mechanism are to be used to cover administrative expenses and to assist developing country parties that are particularly vulnerable to the adverse effects of climate change to meet the costs of adaptation. Again, however, the specifics on how this will be done will have to be subsequently fleshed out.

Stocktaking/Five Year Reviews

SIDS were adamant that any agreement should include provisions for five-year review cycles of greenhouse gas emissions targets to assess the collective progress towards achieving the long term goal of a 1.5 degrees Celsius target with the first review to take place before 2020. The Conference of the Parties serving as the meeting of the Parties to the Paris Agreement agreed to five year reviews after 2023, but with inclusion of “unless otherwise decided”. Additionally, unlike the “before 2020” recommendation made, the parties agreed to a first global stocktake in 2023. Here again the Paris Agreement features a compromise but is a major win for small states as it allows for periodic reviews so adjustments can be made to ensure the goal of 1.5 degrees is reached.

Legally Binding

Much ado has been made about whether it would be a legally binding Agreement. This discussion was quite moot as Article 2(1)(a) of the Vienna Convention on the Law of Treaties defines a treaty as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”, while Article 26 further provides that “every treaty in force is binding upon the parties to it and must be performed by them in good faith”. For domestic ratification reasons, the US position however is that it is not a treaty. Because of the concept of separation of powers, a treaty would require Congressional approval which, given the current composition of the US Congress and the strong oil and coal lobbies, is unlikely to receive congressional approval.

Transparency

Article 13 of the Paris Agreement establishes an “enhanced transparency framework for action and support with built-in flexibility which takes into account Parties’ different capacities”. The Transparency Framework established under the Agreement is to build on the transparency arrangements already established under the UNFCCC Convention and there is to be frameworks for transparency to action and transparency of support.Parties are to regularly provide information a national inventory report of anthropogenic emissions by sources and removals by sinks of greenhouse gases and information necessary to track progress made in implementing and achieving their nationally determined contribution under Article 4. However, it does not state how often is “regularly”. There are also reporting obligations in regards to financing and technology provided and received.

The technical expert review provided for under Article 13 is to consist of a consideration of the Party’s support (as relevant), its implementation and achievement of its nationally determined contribution, identification of areas of improvement for the Party, and include a review of the consistency of the information with the modalities, procedures and guidelines referred to in paragraph 13 of the Article. The review is to pay particular attention to the respective national capabilities and circumstances of developing country Parties.

Compliance and Enforcement

The key issue is not whether it is a legally binding agreement but its enforcement of compliance. The greatest weakness of the Agreement is that many of its major provisions are drafted in hortatory ‘best endeavour” language as well as its enforceability and policing given its weak compliance mechanism. Article 14 establishes an expert-committee based mechanism to facilitate implementation of the agreement and compliance with its provisions. However, the fact that it is to be facilitative and “non-punitive” means it is not envisaged to be an enforcement mechanism which actually has “teeth” and would probably be little more than a “name and shame” mechanism. The actual modalities and procedures of this committee are to be decided by the Conference of the Parties meeting as the Parties to the Paris Agreement when they have their first session.

Just the Beginning

In light of the many compromises and vague language in many of provisions, the Agreement is by no means a perfect one and aspirational rather than binding in many of its key provisions. It is, however, a lot better than what it would have been had it not been for the strong defence by SIDS, through the Alliance of Small Island States (AOSIS), of their interests. In light of previous failures and two decades of often challenging climate change negotiations, the fact that we finally have an agreement, which though not perfect, balances interests in a way that is fair and incorporates most of SIDS concerns, is an important victory for SIDS and the world. It recognises the principle of differentiated responsibility and makes some mention of the special vulnerability of SIDS in various provisions. Another positive aspect is that Article 27 provides that no reservations may be made to the Agreement.

The Paris Agreement represents a turning point towards a new post-2015 global plan for climate change adaptation and mitigation. The real test will be in its ratification and implementation. Pursuant to Article 21, at least 55 Parties to the Convention accounting in total for at least an estimated 55 percent of the total global greenhouse gas emissions, have to ratify the Agreement for it to come into force. The US will be a critical case to watch as if it is seen as a Treaty, which it indeed is, Congressional approval will be needed and such approval appears unlikely. No one wants a repeat of the Kyoto debacle.

There is scepticism about whether the “1.5 degrees Celsius” target can actually be reached. Indeed, the INDC Synthesis report released by the UNFCCC Secretariat and which captured the overall impact of national climate plans covering 146 countries as of 1 October 2015, showed that the current INDCs have the capability of limiting the forecast temperature rise to only around 2.7 degrees Celsius by 2100, which still does not support the 2 or 1.5 targets. The review mechanism provides the opportunity to review national climate plans to bring them into this target. SIDS will need to continue their advocacy and use the review mechanisms provided for under the Agreement to continue to hold major emitters to account.

While it is easy to bask in the euphoria of this historic agreement, the world cannot take this moment for granted by resting on its laurels. Now the real work on a low carbon economy begins.

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.