In our article on 19th October 2015 we provided an overview of the forthcoming international climate change negotiations which are to take place in Paris from 30th November 2015. If successful, the negotiations will result in a global agreement on tackling greenhouse gas (GHG) emissions. In this article we discuss some of the central aspects of the potential agreement, namely mitigation, adaptation and loss & damage.

These are fundamental aspects of the potential agreement, not only because it is in the provisions on mitigation, adaptation and loss & damage where the world’s political leaders will set out the scale of national and international ambition in terms of tackling climate change and the effects of climate change but also because these provisions feed strongly into the shaping and financing of low emission and climate resilient societies and economies.

Mitigation

In effect mitigation is what the Parties commit to do in terms of reductions in GHG emissions with a view to holding global temperature rise below a level to be agreed (perhaps 2 or 1.5 Celsius). There is anticipation that the Parties will agree an overall target, or other formula, for global GHG emissions reduction and that each Party (or regional groupings of parties, e.g. the EU) will set out its own nationally determined commitment (and approximately 150 countries have already made known their commitments). In doing so, the intention appears to be that the Parties will be entitled to take into account national circumstances. It is imagined that there will be negotiations surrounding how the national commitment obligation will be phrased in the proposed agreement. For instance will there be express requirements describing the level of ambition; will the commitment be quantified; and will it be unconditional? The commitments are intended to be made publicly available and to be in terms which are clear and transparent.

There has been comment to the effect that when all the national commitments are added together, the total will not be sufficient to meet the global objective (to some extent this is reflected by the fact that the proposed agreement seeks also to deal with adaptation (below)). Perhaps this is driven by recognition of concern amongst the Parties that it is not realistic to expect such an outcome at this stage. As a mechanism to address this, the proposed agreement contemplates that the national commitments may be revised periodically; say every 5 years, akin to mandatory periodic reviews (this is not uncommon in recent EU environment and energy legislation). It is imagined that on such reviews developments in science, technology, techniques and funding will be expected to push the existing commitments upwards in ambition. 

The current text of the proposed agreement expressly states that developing countries would be eligible for support (which we imagine must include financial support) in the implementation of their mitigation commitments.

Adaptation

The Parties recognise that the better they mitigate climate change the less adaptation will be required. Nonetheless the Parties appear to accept that provisions for adaptation are required to protect vulnerable people, economies and ecosystems. The Parties appear to be anticipating that the text of the agreement on adaptation may need to provide that adaptation provisions should be country driven, gender sensitive and science and knowledge based but otherwise require international co-operation, information sharing, institution strengthening and greater preparedness for emergencies.

It is anticipated that it may be agreed that each Party will draw up adaptation assessments and plans which would be periodically updated and made publicly available. Again the current text of the proposed agreement expressly states that developing countries would be eligible for support (which we imagine must include financial support) in terms of adaptation.

Loss and Damage

A recognised tough issue for the Parties is how to support vulnerable developing countries which suffer adverse effects of climate change (including where mitigation and adaptation measures are inadequate).  Supporting measures may require technical, financial and other support in terms perhaps of slow onset events and extreme events. It will be interesting to see how this is reflected in the agreement if agreement is reached.

Comment

These are central aspects of the potential Paris agreement. The content of these provisions and how they are set out will be tremendously important for countries and commercial entities to consider in shaping their plans for economic and social development.