COP 20: Sections K and L.

Yesterday I said that the focus of negotiations needs to be on getting the rules governing Nationally Determined Contributions (NDC's) finalised in order to allow INDC's to be submitted in the first quarter of 2015. As such I've leapt forward to deal with sections K (paragraphs 68 through 79) and L (Paragraph 80) of the December 8th draft.

Section K: Timeframes, Processes and Other Matters: This section deals primarily with the ex ante and post review processes. Therefore I think I should start by laying out my grand vision for what these processes should be;

I think both the review processes should resemble an academic peer review process as closely as possible. That means they should be scientific rather then providing an opportunity for political point scoring. For this to happen it is essential that all NDC's need to be published so any nation can choose to review any other nation it wishes.

However I think that as this is likely to end up with just 192 reviews of the US' NDC's there also needs to be a supervisory panel that will carry out its own reviews. It will be able to both select nations it wishes to review and accept requests by nations for it to review their work. To make sure all NDC's are reviewed and to build capacity across the board the supervisory panel should also assign nations into roundtable type working groups. Those working groups will then each carry out reviews of a handful of nations that are assigned to them by the supervisory panel. 

It is vital that the process is non-punitive and non-prescriptive meaning that no party will be bound by comments made by their reviewers particularly over subjective issues like "Fairness." If this is allowed then it stops being a scientific process and becomes a political one. The fights that will cause will undermine the process and could lead to the entire agreement collapsing. However nations will be free to publish their reviews as publicly and widely as they like if they wish to attempt to embarrass a nation into taking more ambitious action.

With that in mind my thoughts on the specific paragraphs are as follows;

Paragraph 69: As there needs to be needs to be a review process Options 1 & 4 are simply insufficient. By reducing the obligations on less capable nations through the binary process Option 5 robs those nations of an opportunity for capacity building. For example I studied the physical environment at university but I have learnt more through doing this because I have been forced to work to a higher standard. Therefore I think that Option 3 here and similar options throughout the text are simply unacceptable.

Option 2 would be desirable here but it needs work firstly by removing the binary references in (a) and the word "fairness" in (b) because that politicises the process. I would also like to see the language guarding "non-prescriptive, non-intrusive and non-punitive" in (d) from Option 3 but I suspect that is already covered by 69.1(c).

Paragraph 69.2: In Options 1 & 4 the timeframe offered is too short whilst Option 2 creates an unnecessary delay. Option 3 establishes a required deadline for the ex ante process but also creates an unnecessary delay. Therefore I think the best option is wording that allows the process to begin at Option 1 but forces it to end by Option 3.

Paragraph 69.3: Clause (e) obviously creates a binary difference between parties and is therefore unacceptable to me. Obviously though the differences in capability between nations does need to be recognised however I think it should be recognised in Section L because here it creates a capacity building problem.

Paragraph 69.4: Here Option 4 is binary and therefore should automatically be excluded because you are not going to be able to find a single nation that is prepared to accept it. Option 1 is too weak because it only requires nations to consider the outcome of review. Option 3 is much stronger but forced adjustment in response to a panel decision is so close to top-down adjustment you'll struggle to find anyone willing to sign up. Therefore I think the best option is a combination of Options 1 & 2 that require nations to consider the outcome of review and invites them to voluntarily revise on the basis of review.

Paragraph 70: Here Option 4 is simply wrong because NDC's are not decisions by a governing body. Options 2 & 3 are binary and therefore rob nations of an opportunity for capacity building. Option 1 means that there is no-one with responsibility to organise the data which will quickly lead to mayhem. By my reading Option 6 doesn't actually require nations to submit NDC's which creates a loophole that undermines the entire agreement. Therefore I would support a combination of Options 5 & 6 provided that loophole can be closed. This can be supported by Option 7 if the Secretariat feels it is capable for providing an online registry.

Paragraph 72: Ideally I wouldn't allow nations to alter their NDC's ex post. However we are not yet quite sure what system will be used so there needs to be a mechanism to make changes if a nation has used the wrong rules. Therefore I would support Option 1 but only if the reference to force majeure is removed. Again this is an issue that I think needs to be brought up in Section L where it can be decided on a case-by-case basis under certain guidance. For example I don't think economic conditions should count as force majeure.

Paragraphs 68, 71 and 73-79: These all deal with ex post issues. The problem is that we're not yet in a position where we have agreed on a mechanism meaning that it is near impossible to predict how it will preform and what, if any changes need to be made. Therefore for Paragraph 71 I would go with Option 3 because it simply leaves the door open for future action. On the timeframe issue it seems to be balance between the increased ambition of 5 years versus the bureaucratic necessity of 10 years. Before I start making any firm decisions in this area I would like more time to consider the Brazilian proposal that would see a 10 year timeframe adopted but for it to be split into two 5 year portions.

Section L: Facilitating Implementation & Compliance: This section is currently just one paragraph long providing lots of freedom to imagine what role it will play in a future agreement. Therefore I should begin by laying out my personal vision of how it should function;

I think the main focus of this section and the entire agreement should be assisting nations to achieve the mitigation targets they have set for themselves rather then punishing people for failure. However it is clear that there will need to be a mechanism to discourage parties from choosing to miss the targets they have set for themselves. Therefore I propose setting up a regulatory body established along current United Nations (UN) lines with up to 15 - but always an odd number - members elected from the regional groupings on a fixed term.

The regulatory body will be divided into a facilitative/investigative branch and an enforcement branch. The investigative branch will work with parties throughout the commitment process to help them identify and solve any problems. At the end of the commitment period the investigative branch will then look to see if any nation has failed to meet its commitments and if so decide to refer it to the enforcement branch. It will also accept referrals from other parties but will be free to dismiss them if they are found to be unwarranted.

In my vision of how this hybrid agreement will work each nation will have set themselves an upper, median and minimum target. The enforcement branch will only deal with failures to meet the median or minimum targets. If a nation has off-set a failure to meet a median target then it will avoid being referred to the enforcement branch. However if a nation has opted not to off-set a median failure or has failed to reach a minimum target it will have to appear before the regulatory panel.

Functioning rather like a panel of Judges the regulatory panel will consider each case on its individual merits and circumstances. Therefore if a less capable nation has failed to meet its target because they set themselves a too ambitious target or had entered into a good faith agreement with a supplier that has then let them down the panel will simply make a note of it and take no further action other then perhaps offering them more advice to make sure the mistake is not repeated. For more capable nations the panel will be able to impose a fine that will go to the GCF or similar. In order to have a deterrent effect that fine should exceed any saving that has been made by failing to implement a policy that would have met a self-imposed target.

Obviously all parties will be able to argue Force Majeure in their defence. Like most legal systems the regulatory panel will be guided by precedent meaning that decisions that have been made in the past will be applied to the future. However on the force majeure issue I think there needs to be some guidance in the agreement.

For example I think that most people would agree that a significant natural disaster such as Japan's 2011 earthquake and tsunami would count as force majeure. Likewise I think most people would agree that a recession, even as one as great as 2008, would not count as force majeure.

However the are examples where things are less clear cut - war being a prime example. After all I look at places like Syria, Iraq and Libya and think that they're unlikely to reach their 2014 development goals. Then of course there are questions of when does violent unrest become war because although Nigeria has problems with Boko Haram I don't think they're severe enough to allow Nigeria to renege on its international obligations.

With all that in mind I think that Paragraph 80 should cover Option 1 overall with Option 1 for (a) which excludes adaptation from the process, Option 1 for (b) covering all parties and Option 2 for (d) allowing for sanctions.

20:55 on 11/12/14 (UK date).