The 2015 Paris Agreement 1. General Architecture Benito Müller

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ecbi. european capacity building initiative initiative europenne de renforcement des capacits. The 2015 Paris Agreement 1. General Architecture Benito Mller Director ecbi , Head of Fellowship Programme. - PowerPoint PPT Presentation

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Negotiation Indices

The 2015 Paris Agreement1. General Architecture

Benito MllerDirector ecbi, Head of Fellowship Programmeeuropean capacity building initiativeinitiative europenne de renforcement des capacitsecbi

for sustained capacity building in support of international climate change negotiationspour un renforcement durable des capacits en appui aux ngociations internationales sur les changements climatiqueseuropean capacity building initiative ecbi1The purpose of this agenda item is to discuss how the general architecture of the 2015 Agreement ensures that it is durable, equitable, and effective.

The general architecture of the 2015 Agreement can be characterised with reference to certain categories of architectural elements, instruments and countries. Items 1.2 to 1.4 are a rough attempt to characterise these categories.1. General Architecture1.1. Top Down vs Bottom Up1.2. Substantive Categories (of Architectural Elements)1.3. Legal Categories (of Architectural Elements and Instruments)1.4. Country Categories (for differentiation)european capacity building initiative ecbiThe distinction between top-down and bottom up can be interpreted as referring to level of discretion of individual Parties concerning category membership, the issue being to what extent are Parties free to make these choices and reverse them? The level of discretion can be constrained by by substantive prescriptions of what options one is eligible to choose from, orby legal prescriptions as to the need to have ones choice recognized by others.1.1. Top Down vs Bottom UpIts all about the discretion to choose!Why restrict the discretion to choose?EquityEffectiveness (ambition)Trusteuropean capacity building initiative ecbi1.2. Top Down vs Bottom UpTop-down (least discretion, highest prescriptiveness)Bottom-up (most discretion, lowest prescriptiveness)No choiceOnly some optionsAll optionsSubstantive Prescriptions on What one can choose fromLevels of PrescriptivenessWhy would one wish such substantive prescriptions?To increase the equity and adequacy of the regime (see Section 1.4)european capacity building initiative ecbi4Degrees of Prescription1.2. Top Down vs Bottom UpInternational consensus + National ratification (Treaty)International consensus (COP decision/agreement)National legal consensus (Legislative decision)National political consensus (Executive decision)Legal Prescriptions on who is involved in choosing Levels of PrescriptivenessTop-down (least discretion, highest prescriptiveness)Bottom-up (most discretion, lowest prescriptiveness)Why would one wish such legal prescriptions?To increase the trustworthiness of contributions/promises (see Section 1.3)european capacity building initiative ecbi5Degrees of PrescriptionLegal PrescriptivenessKyotoProtocol1.2. Top Down vs Bottom UpMulti-dimensional choicesSubstantive PrescriptivenessSubstantive PrescriptivenessKyotoProtocolLegal PrescriptivenessAnythingGoesAnythingGoesLegal strengtheuropean capacity building initiative ecbib. (Potential) Substantive Categories of INDCsMitigation, Adaptation, Finance, Technology Transfer, Capacity BuildingLoss & Damage

1.2. Substantive Categories (of Architectural Elements)a. Basic CategoriesIntended Nationally Determined Contributions (INDCs) and

Other, in particular, regulatory elements (REs)c. Categories of Regulatory ElementsAccounting rulesAnchoring Provisionseuropean capacity building initiative ecbi1.3. Legal Categories (of Elements and Instruments)b. Categories of InstrumentsTreaty/ProtocolAnnex/Appendix/ScheduleCOP DecisionInf. DocumentDomestic lawExecutive order/regulationsData BaseLegal strengthInternationally binding Domestically binding Politically binding Non-binding/aspirational a. Categories of Legal Bindingnesseuropean capacity building initiative ecbic. Questions/Issues for discussionDoes it make sense to portray these different legal forms in terms of a linear measure of legal strengthWhat category of legal bindingness does/could apply to the different instruments, and how could they be anchored to one-another?Which category of element could/should be housed in which type of instrument and under what anchoring provisions?Could/should there be country differentiation?

8COP DecisionsMain AgreementAnnexesData BasesThe basic legal structure of the Paris Package (protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties)1.3. Legal Categories (of Elements and Instruments)european capacity building initiative ecbiThe Main Agreement could have different legal forms (Treaty/COP Decision), but it stands to reason that whatever form it takes, it will determine the highest legal form level of the overall package9COP DecisionsMain AgreementAnnexesData BasesThe basic legal structure of the Paris Package (protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties)1.3. Legal Categories (of Elements and Instruments)european capacity building initiative ecbiThe Main Agreement could have different legal forms (Treaty/COP Decision), but it stands to reason that whatever form it takes, it will determine the highest legal form level of the overall package10COP DecisionsProtocolAnnexesData Bases Legal PrescriptivenessThe basic legal structure of the Paris Package (protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties)Top-downBottom-up1.3. Legal Categories (of Elements and Instruments)Least prescriptiveMost prescriptiveeuropean capacity building initiative ecbiThe Main Agreement could have different legal forms (Treaty/COP Decision), but it stands to reason that whatever form it takes, it will determine the highest legal form level of the overall package11Excursion 1:Levels of Legal Bindingness and Degrees of Legal Prescriptiveness

european capacity building initiative ecbiPublic announcementEvidence states intention to be boundThe United States will not use nuclear weapons against any non-nuclearweapon State party to the Treaty on the Non-Proliferation of Nuclear Weapons..., except in the case of an attack on the United States, its territories or armed forces, or its allies... (Declarations by the US Secretary of State in 1978)

Levels of Legal Bindingness and Degrees of Discretion

european capacity building initiative ecbiThis ecbi Legal Note considers the legal options for creating a space for QELROs in the Paris Agreement. It explores the legal feasibility of having an annex say Annex Q for QELRO to a Treaty/Protocol (which as such would have to be ratified/enter into force) where Parties could inscribe targets which would automatically become legally binding. Thus there would be no need for some additional amendment ratification process (as in the case of the Kyoto Protocol), although possibly with the precondition of a COP decision expressing consent to ensure environmental integrity.

european capacity building initiative ecbi1.2. Top Down vs Bottom UpLegal PrescriptivenessKyotoProtocolLegal strengthQ.1Q.2Q.3COP Decision + Nl ratificationCOP Decision + UDUnilateral Declaration (UD)ProtocolAnnex Q.2Annex Q.1Annex Q.3L-PrescriptivenessQELROs in the Paris ProtocolInternationally bindingInternationally binding contributions National ratificationeuropean capacity building initiative ecbi15End of Excursion 1european capacity building initiative ecbiThank you!european capacity building initiative ecbiExcursion 2:International law: the International Law Associations (ILA) Legal Principles related to climate changeeuropean capacity building initiative ecbiAboutCommittee on legal principlesDraft articles and commentaries blueprint for an international treaty?Current and emerging law applicable between states

Principles:Sustainable development (draft Art.3)Equity (draft Art.4)CBDRRC (draft Art.5)Special circumstances and vulnerability (draft Art.6)Prevention (draft Art.7A)Precaution (draft Art.7B)International cooperation (draft Art.8)Good faith (draft Art.9)Inter-relationship (draft Art.10)ILA Legal principles related to climate changehttp://www.ila-hq.org/en/committees/index.cfm/cid/1029european capacity building initiative ecbiSome findings & consequencesPrinciple of international cooperation requires states to transfer scientific knowledge, develop international law and fill existing legal gapsAtmosphere is a common natural resource and State sovereignty over atmospheric space must be exercised in the interest of humankind for the benefit of present and future generationsProtection of the climate system must be balanced with economic and social developmentThe totality of the global atmosphere must be managed as one in accordance with internationally agreed rules.These rules need to reflect other important objectives, such as the realisation of human rights and poverty eradication.Thus, increasing GHG emissions in developing countries remain - to some extent - justified.

ILA Legal principles related to climate changeeuropean capacity building initiative ecbiDue diligence obligationPrinciple of prevention applicable to climate change due diligence to avoid, minimize and reduce likelihood of harm through climate change!Obligation to act where (a) reasonable foreseeability of damage falling short of conclusive scientific proof and (b) a threat of serious or irreversible damageNeed for ongoing assessment of measures in light of new scientific knowledgeProcedural obligations: environmental impact assessment, notification and consultationDifferentiated responsibilities, due to differing (Art.5.3):- Historical, current and future contributions to climate change- Technological, financial and infrastructural capabilities- National circumstances (and constraints)States commitments fall along a spectrum and shall evolve over time as contribu