COP21 in Paris delivered a part legally binding, part voluntary deal on climate change that has generated a mass of interest, global media coverage and a multitude of interpretations. Some argue that it weakens the notion of historical responsibility and provides inadequate certainty in terms of support for implementation, while others say that it puts in place the necessary foundations to avoid the full dangerous effects of climate change.
Academics, environmentalists, economists, scientists, lawyers and political analysts will spend a long time interpreting and reinterpreting this document and, in doing so, will be unable to ignore that it has forests and other carbon-absorbing ecosystems at its heart.
It’s well known that the world’s forests play a critical role in addressing climate change. Reductions in deforestation and forest degradation can result in lower greenhouse gas emissions and more sequestered carbon. The REDD+ Framework seeks to incentivize actions in developing countries that achieve these results, as well as enhancing forest carbon stocks, conserving forests and achieving the sustainable management of forests. The Sustainable Developments Goals (SDGs) also seek to contribute to this through, among others, the goal of halting deforestation by 2020.
Forests are also well recognized for their role in adaptation. Conserving and enhancing forests strengthens resilience for the climate and for communities. Forests contribute to improved access to water and bring a multitude of other health benefits ranging from food to medicine. There is no question that taking better care of the world’s remaining forests and natural ecosystems is good for people and for the climate and will contribute to meeting multiple SDGs.
Until now, however, there has been uncertainty as to the role of forests and ecosystems in relation to climate actions. The Paris Agreement provides some clarity on this. In particular, it includes a specific Article that creates expectations within a broader legal framework related to both mitigation and adaptation actions and the land sector and forests, and its long-term goal is dependent on sequestration, which will be achieved mostly through natural processes, by forests and oceans.
SINKS, RESERVOIRS, ECOSYSTEMS AND FORESTS
Article 5.1 of the Paris Agreement puts in place an expectation that Parties should take action to ‘conserve’ and ‘enhance’ sinks and reservoirs of greenhouse gases including biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems.
This provision re-states the content of Article 4 of the Climate Convention and, read in the context of the new Agreement, now opens up questions as to how ‘conservation’ and ‘enhancement’ of these ecosystems can contribute to achieving the long-term goal of limiting global warming to well below 2 or 1.5 degrees. It calls for ways by which these carbon sinks and reservoirs can contribute to achieving the 1.5 degree target and opens a discussion about the importance of safeguarding these ecosystems. It arguably puts in place a legal basis to require countries to ‘conserve’ and ‘enhance’ ecosystems when taking actions related to climate change.
We have not ‘fixed’ the problem of climate change, and we are far from saving ourselves from the impacts.
Article 5.2 goes further to encourage ‘implementation’ and ‘support’ of REDD+, and provides international endorsement of both REDD+ and of a joint mitigation and adaptation approach to the integral and sustainable management of forests (JMA). It also reaffirms the importance of non-carbon benefits (NCBs) and, in doing so confirms the broader scope of REDD+ to be a market and a non-market mechanism that is as much applicable to adaptation actions as it is to mitigation.
Through this paragraph, all Parties (both developed and developing countries) are encouraged to take actions and to provide financial support for the Warsaw Framework on REDD+, JMA and NCBs. It provides JMA with its own separate standing, and, when considered in the context of the work mandate concerning non-markets, creates an interesting new process to be undertaken looking at adaptation–mitigation synergies.
The new expected work concerning results-based payments at the Green Climate Fund in 2016 together with the outcome of the Paris Agreement sends a strong signal to countries that efforts to implement REDD+ will gain strength and will play an important role in the climate framework going forward.
LANDSCAPES AND ‘SUSTAINABLE DEVELOPMENT’
The cross-cutting nature of the Paris Agreement cannot be understated. In the final days of high-level negotiations, it was resolution of these cross-cutting issues, in particular finance and differentiation, that was key to reaching an agreement. To put Article 5 in context, it needs to be read together with other provisions in the Agreement.
This sends a strong signal to countries that efforts to implement REDD+ will gain strength.
Article 5 needs to be considered against the diverse background set out in the Agreement’s preamble. The preamble recognizes the priority of safeguarding food security and the existing obligations on Parties to respect and promote human rights and the rights of indigenous peoples and local communities, gender equality, climate justice and the importance of ecosystems integrity. Although not in itself legally binding, the social and environmental character of the preamble to this Agreement cannot be ignored.
Article 5 should also be read together with the long-term goals related to temperature (Article 2), mitigation (Article 4.1) and adaptation (Article 7.1) as well as food production (Article 2). It should be considered in the context of linkages with the newly established Sustainable Development Mechanism (Article 6), means of implementation (Articles 9–11) and nationally determined contributions (NDCs).
LONG-TERM GOALS
The Paris Agreement establishes several long-term aspirational goals. It establishes a long-term temperature goal of remaining below 2 degrees and striving to remain below 1.5. It establishes a mitigation goal of reaching a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century; and it establishes an adaptation goal of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change.
Achieving these long-term goals will not be a straightforward task. It will require significant finance, policy and law reform across multiple sectors and will entail risks for people and ecosystems across the landscape. The mitigation goal is dependent on the removal of greenhouse gas emissions by sinks, to achieve what is otherwise known as ‘net zero’ emissions.
Until the Paris Agreement, there was uncertainty as to the role of forests and ecosystems in relation to climate actions.
The extent to which the burden of absorbing greenhouse gases is placed on forests and oceans will depend on the rate at which the world phases out fossil fuels and achieves full decarbonization of the global economy. While some may take the simplistic view that we can offset the burning of more fossil fuels by planting more and more forests, it must be remembered that available land is finite and sequestration by many ecosystems is not permanent. The longer it takes to phase out fossil fuels and decrease other emissive sources, the greater burden and dependence will be put on natural absorption to achieve the mitigation and temperature goals. Many hope that the Paris Agreement sends a strong signal to governments and the private sector that this must be the end of the age of fossil fuels.
Although the 1.5 degree goal is hailed as one of the major successes of COP21, it holds a certain irony, in that it will likely require significant areas of land for carbon sequestration and an unknown quantity of potentially dangerous negative emissions technologies, all which must be balanced with food security, the safety and rights of people, biodiversity conservation, and the new global adaptation goal. The world will walk a delicate line on these issues and will require transformational change in terms of national cross-sectoral coordination in many countries.
THE SUSTAINABLE DEVELOPMENT MECHANISM
The Paris Agreement establishes the ‘Sustainable Development Mechanism’ (SDM), which has unclear links to its role in relation to sustainable development. It is a new market mechanism that builds on the Clean Development Mechanism. Parties may voluntarily engage in the SDM as a way of ‘increasing their ambition’. Further work will be undertaken at the UNFCCC over the next two years to develop the rules and modalities.
The outcome concerning the SDM is in many ways reflective of the non-legal binding nature of the emission reduction targets set out in Parties’ Intended Nationally Determined Contributions (INDCs). However, Parties are under an obligation to ‘pursue domestic mitigation measures with the aim of achieving the objectives of such contributions’. In other words, they need to show that they are trying, which, for many, is completely dependent on the provision of finance. The SDM can be used to contribute to these efforts.
The SDM has a dual role—to mitigate greenhouse gases and to support sustainable development—but how it will achieve these remains unknown. It is applicable to both public and private entities and enables the transfer of mitigation outcomes from one country to another.
Some expected that legally binding emission reduction targets that would require an international ‘compliance market’ would emerge from the Paris Agreement. Many have, over the years, explored the role of REDD+ in such an international carbon market. This did not occur and the SDM is a voluntary mechanism that is applicable to both mitigation and adaptation. However, the extent to which it relates to forests, and more so land, remains part of an ongoing debate around the issue of permanence, as the mitigation benefits must be ‘long term’.
We should not forget that we are six years behind schedule in a process that has been ongoing for more than two decades.
NO COMMITMENTS IN THE ‘CITY OF LOVE’
Almost every country in the world has now submitted its INDC, which, unless revised, will become nations’ contributions to climate mitigation, adaptation and means of implementation between now and 2030. Most INDCs include the land sector and 39 from developing countries include REDD+.
However, the level of ambition in the INDCs is not enough to prevent dangerous warming and most include targets as far away as 2030. Studies show that the current INDCs put the world on a trajectory of 2.7–3 degrees of warming, which would be catastrophic. This ‘shortfall’ is recognized in the Paris package.
COP21 has put in place a process to enhance ambition several years after the Agreement comes into force, which is expected to be 2020. Parties will be under an obligation to communicate their contribution every five years, which is expected to be an improvement on their previous contribution. This five-year system will include a periodic stocktaking of the implementation of the agreement to ‘assess’ the progress toward achieving long-term goals and objectives. This first stock-take will occur in 2023. Parties are required to take the outcome of the stock-take into consideration when updating and enhancing their contributions.
One of the most significant failings of the Paris outcome is that it does not put in place a process to review the current INDCs and increase ambition prior to 2020, and hence put the world on a safe path to achieving either of the temperature goals now. Many countries sought such a process but this did not occur. The result may be a ‘lock-in’ of low ambition until 2030, which will undermine efforts to achieve the 1.5 degree temperature goal.
One of the most significant failings of the Paris outcome is that it does not put in place a process to review the current INDCs.
In an attempt to remedy this shortcoming, French President François Hollande took leadership in the final hours and announced that the French mitigation and finance contribution will be revised before 2020 and invited other countries to join him in doing so. As Parties may update their contribution at any time, it is now incumbent on Parties to use this nationally driven, bottom-up system to take steps to increase their ambition and update and revise their current submitted INDC before it becomes their NDC.
WHEN THE HONEYMOON IS OVER
The Paris Agreement was adopted at 9.30 pm on Saturday 12 December 2015. The G77, together with China, recognized it as a step in a long journey, drawing on Nelson Mandela’s famous words: “We dare not linger, for the long walk is not ended”. The United States heralded the adoption of the agreement as a “tremendous victory for the planet and future generations”. India considered this to be a “new chapter of hope in the lives of 7 billion people on the planet”, quoting Ghandi’s words that “we should care for a world we will not see”. French President Hollande took a moment to draw on France’s history of revolutions, calling this “the most beautiful and peaceful revolution, a revolution for climate change”.
Not all were jubilant, however. Ecuador and several others pointed out that the Agreement is not worth the paper it is written on without the necessary financial support to ensure its implementation and emphasized the need to decarbonize the global economy urgently. Nicaragua was unable to join the consensus on the basis that the Agreement does not ensure the level of ambition is increased. They seek a compensation fund and could not agree to the loss-and-damage liability and compensation exclusion clause on the basis that it takes away rights of future generations. The call for compensation was echoed by Bolivia through their proposal that a Climate Justice Tribunal be established.
The extent to which the burden of absorbing greenhouse gases is placed on forests and oceans will depend on the rate at which the world phases out fossil fuels.
The Paris outcome puts in place a new Ad Hoc Working group (APA), which will undertake work to prepare for the entry into force of the Paris Agreement expected in 2020, subject to ratification. The APA will develop a series of decisions, to then be agreed as a package of rules or accords to be adopted by the first Paris Agreement meeting of the Parties. It will develop further guidance concerning the NDCs and put in place a ‘common’ system of transparency of action and support by 2018, which will include land-use accounting and reporting. It will develop the inputs and modalities for the global stock-take and for the compliance mechanism.
The Subsidiary Body on Scientific and Technical Advice (SBSTA) will now put in place work programs for response measures, and develop rules and modalities for the SDM and non-market approaches including adaptation–mitigation synergies, which will be particularly relevant for the non-markets approach to REDD+. It will also continue with its ongoing work on agriculture into 2016.
MOVING ON
I left Paris with mixed feelings, and that’s not only because I love the city. Yes, it is good that this Agreement has been reached because the world could not afford to continue the geo-political climate conundrum it has been in since 2009, and this high-level Agreement was necessary to enable us to move forward. As some have said, the ghosts of COP15 in Copenhagen have been laid to rest. Among what seem to be ‘super positive’ messaging and day after day of celebratory back patting, we should not forget that we are six years behind schedule in a process that has been ongoing for more than two decades. When viewed through this lens, I personally find it difficult to accept that this is a starting point. This journey was started long ago.
Article 5.1 arguably creates a legal requirement for countries to ‘conserve’ and ‘enhance’ ecosystems when taking actions related to climate change.
As a result of this outcome in Paris, we have not ‘fixed’ the problem of climate change, and we are far from saving ourselves from the impacts. This Agreement is the best we could get and we need to make the most of it now, and we need to do it with a sense of urgency and in a way that is socially and environmentally sensitive.
It would be safe to say that this battle was won, and it was a turning point, but unfortunately, the war is far from over and climate change continues to be the greatest challenge of our time.
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