ADP Compliance: My Thoughts

This is one of the most controversial sections of the agreement because it would give the Secretariat the power to impose financial penalties on nations that fail to meet their commitments. This is not something that is popular amongst many nations - the US in particular has indicated that it is opposed to such a measure.

However in an agreement that allows nations almost complete freedom to set their own commitments there certainly needs to be a mechanism to make sure they follow through on those commitments. Otherwise there isn't an agreement. Instead there is just a forum for nations to make political announcements of emission reductions that they have no intention of carrying out.

Obviously though the first priority of this entire agreement is to get nations to reduce their emissions in order to halt global warming. Therefore the priority of the compliance provisions is to make sure that nations are able to comply with their commitments rather than punishing them for failure.

As such the main bulk of the work of the compliance provisions will be to monitor and work with nations throughout the ex ante and ex post peer review processes and in parallel throughout the commitment cycle. If it is identified that a nation is struggling to meet it's commitments the compliance mechanism should be empowered to work with the nation to identify the reasons for its lack of progress and provide solutions. This can obviously involve technical expertise but struggling nations could also be given priority under the financial mechanisms.

Only if after all this mentoring and support has been provided a nation still fails to meet its commitments it will be referred to what is essentially an adjudication panel which examine the specific case and impose an appropriate punishment.

In Force Majuere situations the appropriate punishment is to take no further action. If a nation has worked closely with the compliance mechanism throughout yet has failed because it set itself too ambitious commitments then the appropriate punishment would be a letter of censure advising the nation on how to set more realistic targets in the future.

Financial penalties such of fines are to be reserved only for circumstances where a nation has wilfully failed to meet its self-imposed commitment having disregarded all the warnings and advice in the peer review process and the compliance mechanism.

What level these fines are to be set at is another complex issue. Obviously there needs to be a sliding scale so failing to meet 10% of the commitment is not punished as harshly as failing to meet 90% of the commitment. For maximum deterrent I think the scale of the fine should be at the level of or exceeding any cost saving the nation may have achieved by choosing not to meet it's commitments.

Therefore rather than setting firm rules in the text of the agreement I would prefer to give the adjudication panel a significant degree of freedom in the level of fines it can impose. Even if that does create a degree of nervousness over what exactly nations are signing up to. All the decisions of the panel though will need to be bound by precedent so if it imposes a USD1000 fine on one nation it can't then go on to impose a USD10000 fine on another nation for the same offence.

I also appreciate that as always with this type of cross-jurisdictional enforcement there will be a degree of negotiation over the scale of any fine between the panel and the nation being fined.

If a nation considers a panel decision to be unfair they can appeal to the general assembly of parties. If a simple majority vote against the decision it is overturned and the panel will reconsider the issue.

Obviously any proceeds from financial penalties will go to enhancing climate change action. This can either mean the Green Climate Fund (GCF) or a dedicated fund that the compliance mechanism can use to make sure nations are able to comply and therefore avoid fines.

The problem with all this is that with no-one really wanting to talk about compliance this section is significantly under developed. Therefore rather than simply choosing between options I'm going to have to blend parts of the text with the parts from Section J that I excluded to produce almost original text as I did with the peer review section.

That is going to take me a couple of days at least.

23:35 on 16/11/15 (UK date).