Shaping the form of the
Durban Platform Agreement:
An equitable outcome for
Small Island Developing States
Melissa Low
12th IUCNAEL Colloquium
Universitat Rovira I Virgili, 3 July 2014
Tarragona, Spain
Melissa Low, ESI NUS
Year of Small Island Developing States
• Disproportionate vulnerability to the adverse effects of climate
change, especially sea level rise
• Eclectic group of countries, formally recognized as a group in
various international environmental fora
• How should the 2015 agreement reflect the vulnerabilities and
circumstances of SIDS?
2
3
SIDS within the negotiating groups of the UNFCCC
(Source: UNFCCC, 2005)
Melissa Low, ESI NUS
The Durban Platform Mandate
In 2011, the expiration of the first commitment period of the
Kyoto Protocol was imminent.
Thus, the UNFCCC at its seventeenth session (COP17) in Durban
initiated a new process called the Ad hoc Working Group on the
Durban Platform for Enhanced Action (ADP) to ‘adopt a protocol,
another legal instrument or an agreed outcome with legal force
under the Convention applicable to all Parties’
4
5
Melissa Low, ESI NUS
Options for Legal form for the
2015 Climate Agreement
‘a Protocol… under the
Convention’
‘another legal instrument…
under the Convention’
‘agreed outcome with legal
force… under the
Convention’
A protocol
Amendments (Art 15)
Does not limit the result to one
instrument
Annexes (Art 16)
Amendments to annexes (Art
16)
Could also be interpreted as
legal instruments embodied in
domestic, rather than
international law
COP decisions
A Protocol would not only have to recognize mitigation pledges as a means to reduce
GHG emissions and prevent catastrophic climate change and ensure the very survival of
SIDS, it would also have to include adaptation and the slow onset of loss and damage
over time.
Source: Voight, 2012
Melissa Low, ESI NUS
Source: Lavanya Rjamani presentation on “Differential Treatment in International Environmental
Law”, Workshop on scope, structure and design of the 2015 agreement, ADP 2-1, 29 April 2013,
Bonn Germany
6
Melissa Low, ESI NUS
Reasons for a Protocol
1. Applicable to all Parties
2. Strengthens the ‘rules-based… regime under the Convention’
3. Strengthens the ‘multi-lateral… regime under the Convention’
4. Many commitments of Annex I Parties of the Kyoto Protocol to a second
commitment period (CP2) is conditioned upon a comprehensive new
agreement (‘part of the package’)
5. Timeline between adoption in 2015 and coming into effect and being
implemented from 2020 is reminiscent of a process for ratification
6. For COP decisions to have a normative (‘regulatory’) effect, the COP needs to be
empowered by treaty law to adopt decisions of binding nature.
7
Melissa Low, ESI NUS
Options other than a Protocol
1. Amendment
2. Annex(es)
3. Amendment to Annex(es)
4. ‘Package outcome’ of both a legally-binding instrument and COP decisions
of various types
5. Legal instruments embodied in domestic, rather than international law
8
Melissa Low, ESI NUS
SIDS & Legally Binding Agreements
• SIDS have a history of pursuing legally binding agreements (Drumbl, 2000,
Tulane Law Review)
▫ In response to the international community’s preference to enter into
negotiating processes that ultimately end in soft law agreements with
little commitment to action (Fry, 2005, Review of European, Comparative
& International Law
• Slow progress could be tolerated if SIDS were generally convinced that this
would lead to legal bindingness in the end (Ramlogan, 2002, Vermont
Journal of the Environment), or the belief that accumulative enunciation of
their concerns and aspirations made by numerous non-binding texts my help
express the opinio juris of the world community (Dupuy, 1991, Michigan
Journal of International Law)
9
Melissa Low, ESI NUS
10
SIDS & AOSIS
• SIDS have been able to obtain some remarkable achievements in the climate change
negotiations by building a cohesive coalition, the Alliance of Small Island States
(AOSIS)
• AOSIS has a membership of 44 States and observers, from all oceans and regions of
the world: Africa, Caribbean, Indian Ocean, Mediterranean, Pacific and South China
Sea
▫ 37 are members of the UN, 20% of total UN membership
▫ Form nearly 28% of developing countries
▫ 5% of global population
• Not always easy to find a common denominator among 44 member countries
• As the UNFCCC process increases in scope and complexity, different and potentially
divergent interests are likely to become more pronounced (Betzold et al, 2013,
Climate Policy)
11
Increased complexity of
negotiation dynamic since
1995:
Number of Parties, regional
and coalition Groups e.g. EU,
AOSIS, G77 & China. More
recently African Group, Alliance
of
Latin
American
and
Caribbean Countries (AILAC),
Environmental Integrity Group,
Umbrella Group etc.
Parties compelled by national
policies, avoid locking into
commitments restrictive to
growth means that concessions
will need to be made towards
the 2015 Agreement .
(Source: Betzold et al, 2012, adapted from Castro et al, 2011)
12
Singapore
•
•
•
•
•
•
•
Urban city-state of just 715.8km² (50km W-E X 26km N-S)
Tropical climate on equator
Low-lying, gentle topography, highest point 164m
Population: 5.40 million in June 2013
Population density: 7, 540 persons per km²
GDP: S$372.813 billion in 2013
Per capita GDP: S$69,050 in 2013 (Ranked 1st in 2012 Knight Frank & Citi Wealth
Report )
• Contribution to global emissions: 43,454 ktCO2, less than 0.2%
• Per capita emissions: 12.49 tCO2/person in 2011 (Ranked 15th in 2011 by WRI CAIT 2.0)
Source: NEA, Singapore in Figures 2013, Photo by Yousef Al Habshi
13
Source: The Straits Times, 29 June 2014
14
Perspectives from an island city-State
• No rewriting of the
Convention
• Universal Participation
• National Circumstances
• Nationally Determined
Actions
• Balanced Package
Dr Vivian Balakrishnan, Singapore’s Minister
for Environment and Water Resources
delivering the National Statement at the highlevel segment at COP19 in Warsaw on 20th
Nov 2014.
ADP Co-Chairs Kishan Kumarsingh and Artur RungeMetzger in conversation Singapore’s Environment
Minister, Dr Vivian Balakrishnan and Chief
Negotiator, Amb Burhan Gafoor
15
Intense ADP discussions on text
Source: IISD/ENB, Dr Vivian Balakrishnan Facebook Page
Singapore’s Chief Negotiator with China’s Chief
Negotiator, Su Wei
Minister Balakrishan chairing a Ministerial
Dialogue on the 2015 Agreement with New
Zealand’s Tim Groser
Melissa Low, ESI NUS
Rules of the Game
• Climate effectiveness
• Legal form of Agreement/Protocol
• Frequency of reviews
• Robustness of a transparency framework
16
Melissa Low, ESI NUS
What should the 2015 Climate Agreement
reflect, do for SIDS?
Understand the diversity of locally designed responses to CC, and provide
recognition of such action
▫ System of recognition
▫ Access to support for implementation
Facilitation of interaction of UNFCCC process with SIDS
▫ Engage further on means and impacts of coordinating and facilitating action
▫ Recognizing diversity of governance approaches in cities
▫ Provide platform for practitioners to directly interact and share experiences
Support implementation
▫ Enhancing the Barbados Programme of Action to catalyze development of
climate action goals by SIDS without current targets or goals, and enhance
existing ones
17
Melissa Low, ESI NUS
Concluding notes
• Legal form of the 2015 Climate Agreement is far from settled
• Clear that a Protocol can provide the most equitable outcome for SIDS,
given that all Parties will need to commit to emissions reductions
• However, options other than a Protocol exist and the negotiations will
likely explore all of them before Paris, 2015
• Case study of Singapore highlights diversity of views from SIDS
• Apart from legal form, the 2015 Climate Agreement must have an
enhanced structure to engage small island developing states through
▫ Recognition of action
▫ Facilitation of interaction
▫ Supporting implementation
18
Melissa Low, ESI NUS
Thank you!
Energy Studies Institute
29 Heng Mui Keng Terrace
Block A, #10-01
Singapore 119620
Melissa Low
Tel: (65) 6516 3080
Email: esimlyx@nus.edu.sg
19