Transparency and Access at the Paris Negotiations

by Hari Osofsky

[Hari Osofsky is a law professor, faculty director of the Energy Transition Lab, and director of the Joint Degree Program in Law, Science & Technology at the University of Minnesota. She is serving as chair of the American Society of International Law’s observer delegation at the 2015 Paris climate change negotiations. Any views expressed are those of the author and do not represent the views of either the University of Minnesota or the American Society of International Law. This is her second post from Paris.]

Expectancy has dominated the last two days as people awaited each day’s new draft of the agreement. Because the negotiations are taking place behind closed doors, people use relationships to learn ever-evolving information about the state of negotiations and timing of draft release and to give input to the small set of party representatives allowed in the negotiating rooms. They also race to gain the tickets that allow them access to the plenary room in which the Comité de Paris takes place, since most observers and many delegation members are stuck watching in overflow rooms. In the spirit of transparency, no one except those compiling the draft receives a copy before its release at the Comité de Paris and the drafts and reports on the consultations have all been posted publicly. I stood in a dinner line tonight with a minister who affirmed that he was looking forward to seeing the new draft.

At the Comité de Paris in which Wednesday’s draft was released, Laurent Fabius, COP 21 President, noted many new areas of convergence (there was a three-quarter reduction of bracketed language) and three remaining cross-cutting outstanding political issues, which are no great surprise: differentiation, financing, and level of ambition. After a second Comité de Paris that went until almost 11:30 pm, party statements reinforced that many key negotiating issues still remained, as Dan Bodansky’s post covered. I too was struck by the number of parties calling for a goal limiting the temperature rise to 1.5 degrees, as well as the level of support for the human rights provisions and REDD+.

State parties worked overnight and a new draft was released Thursday evening, with the time rolling back from early afternoon to 9 pm as people exchanged rumors and information. The same three political issues remain the key areas of negotiation and parties are participating in an Indaba of Solutions (closed to observers, with three exchangeable passes for each party) from 11:30 pm on after two hours to review the document. President Laurent Fabius made clear that the time has passed for general statements, and that this Indaba would focus only on compromise solutions aimed at seeking landing zones. He still aims to produce the final text tomorrow. The new text has even fewer bracketed items, and clearly represents some tough compromises. Notably, for example, human rights are mentioned in the preamble without brackets, but have been removed from the operational Article 2.

Press conferences abound as this COP moves towards its conclusion, reinforcing the sense of energy here. In one of the most high profile press events yesterday, Secretary Kerry formally announced that the U.S. is part of the high-ambition coalition and would double its grant-based adaptation commitments by 2020. The press conference was screened to an overflow audience at the U.S. Center as security excluded all observers from the actual press conference (limited to the press pool).

At the same time the negotiations continue to unfold, side events highlighting cities, states, and corporations, as well as a myriad of specific issues, proliferate inside the restricted Blue Zone, in the public Climate Generations space, and around Paris. As someone trying to go to as many side events as possible on subnational government and corporations (while also attending the very limited number of the official negotiation meetings that I have access to), I am overwhelmed by the number of simultaneous options. Participants in these events, including ones who have been to many COPs, attest to the growing role of these non-nation-state entities and recognition of that role. At the same time, many of them call for greater access and inclusion.

As I return from tonight’s meeting, I want to reflect for a moment on this question of access in a world of increasingly polycentric climate change governance. I worry about what those concentric circles that I referred to in my first guest post mean for stakeholders’ ability to have input into the critical compromises being made as I write. There is a fundamental tension at the core of this issue. On the one hand, closed spaces can help people speak freely in ways needed for compromise. On the other hand, if all these other stakeholders matter to the problem and its solution, are current avenues for input enough?

Non-parties have certainly had some avenues for input here besides back channels and this post is not intended as a criticism of access at this meeting in particular. Observers were given the opportunity to talk with Executive Secretary Christiana Figueres and UNFCCC COP 20 President and current Peruvian Minister of Environment Manuel Pulgar-Vidal Wednesday morning, and Minister Pulgar-Vidal conveyed their input at the Comité de Paris just before the Wednesday evening meeting closed. Meanwhile, advocacy groups, such as the coalition working to shift the countries opposing human rights provisions, continue their campaigns to influence national positions with letters and calls to key officials—as well as by comments on drafts given to those with access to negotiators. And nation-states’ pledges through their Intended Nationally Determined Contributions (INDCs) are foundationally based on conversations that national governments have had with other key governmental and nongovernmental actors.

The access issues in international negotiations, though, are much more fundamental than the particular procedures used in any given meeting. Namely, the nation-state-based structure of negotiations and agreements fundamentally limits how polycentric governance is in this context. Even if cities, states, regions, and corporations form their own agreements and pledges, the closed structure of this final stage of negotiations constrains how much those efforts are able to align. And as many have discussed in multiple contexts, resource differences among nation-states make a major difference in their ability to negotiate; the President has tried to be sensitive to small delegations who do not have enough people to attend simultaneous meetings on several streams, but it is clearly much easier for delegations that can substitute in negotiators as meetings go into the wee hours over multiple nights.

The solution to this problem is not straightforward. The world remains divided into nation-state units and treaties among nation-states remain the strongest mechanism that the world has to try to achieve universal action—a critically needed step given how large the gap is between the INDCs and the 1.5 (or even 2) degree goal. But after people emerge from this meeting, hopefully with as strong a Paris Outcome as possible, it is worth taking some time to consider what ways might exist to bring key actors on climate change together better as they make important decisions.

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