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Commentary

Overcoming Critical Challenges:
Legal Force, CDR, Loss Damages, Finance and MRVs

Ella Kokotsis, Director of Accountability for the G7 and G20 Research Groups
December 4, 2015

The Paris Conference of the Parties (COP) meeting is replete with critical challenges, one of the key ones being the adoption of a “protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all parties.” Overcoming this challenge means not only adopting a core agreement or political declaration in Paris, but also defining what legal force such an agreement or declaration would take. If the final Paris agreement takes the form of an international treaty in accordance with the Vienna Convention, implicit in that would be the requirement of an agreement between states, in writing, governed by international law. This would then necessitate a formal ratification process, allowing the treaty to enter into force, thereby making the agreement binding on the parties. Entry into force could be achieved by several conditions, either requiring ratification or acceptance by a specified date or by a defined number of states (similar to the Kyoto protocol).

Overcoming the challenge of creating a global climate agreement with legal force is even more daunting when one considers the critically complex challenges embedded in issues related to carbon dioxide removal (CDR), loss and damages, climate finance, and measurable, reportable and verifiable (MRV) regulations. Any final agreement will need to ensure that its members are held to the same regulations so that verification of emissions reductions is assured. If the Paris commitments are to be successfully implemented, these MRVs will be a key component of any legally binding agreement. But the complexity inherent in CDR, loss and damages, and climate finance could ultimately impede agreement on MRV regulations. One can only imagine, for example, the challenges in implementing measurable, reportable and verifiable regulations on the large-scale extraction of greenhouse gases from the Earth’s atmosphere. But failure to stem climate change through conventional reductions, adaptation and mitigation strategies may require solutions that counter the impacts of a changing climate, such as CDR or carbon capture and storage (CCS). The costs associated with these technologies, however, are vast, and the political debates and considerations about how these technologies are financed will undoubtedly lie at the heart of the Paris negotiations.

The best available science indicates that even with the most ambitious adaptation and mitigation strategies, the world could still be on a trajectory for global warming of over 3°C by 2100, compared with preindustrial levels (World Bank 2013). But the impacts of extreme events, or the slow onset of events including rises in sea levels, will very likely cause loss and damage in certain regions of the world when the limits of mitigation and adaptation strategies are either reached or surpassed. Reaching an agreement that connects mitigation, adaptation, climate finance and loss and damages will be challenging on several levels, not just from the environmental, political and economic perspectives, but also from the social, ethical and legal perspectives. In an ideal scenario, the outcome of COP21 will see a legally binding agreement with an optimum mix of mitigation, adaptation and climate finance, along with the necessary MRVs, all of which are critical in limiting the impact of changing global climate and reducing loss and damages, particular in the most vulnerable regions of the world.

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Ella Kokotsis is the Director of Accountability for the G7 and G8 Research Group and the G20 Research Group at the Munk School of Global Affairs at Trinity College in the University of Toronto. An expert on summit accountability and compliance, she has consulted with the Canadian government's National Round Table on the Environment and the Economy, the U.S. Council on Foreign Relations on their African development agenda, with the Russian government on global health issues in the lead-up to the 2006 St. Petersburg Summit, and with the Government of Canada on numerous summit-related issues during the 2010 Canadian G8 and G20 Summits. Her scholarly methodology for assessing compliance continues as the basis for the annual accountability reports produced by the G8 and G20 Research Groups. She is author of Keeping International Commitments: Compliance, Credibility and the G7 Summits and co-author of The Global Governance of Climate Change: G7, G20 and UN Leadership (Ashgate, 2015), as well as many articles and chapters. She leads the group's work on climate change, energy and accountability.

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