Marrakech Express–Going Slow But Still on Track

by Daniel Bodansky

[Daniel Bodansky is Foundation Professor of Law at the Center for Law and Global Affairs’ Faculty Co-Director at the Sandra Day O’Connor College of Law; an Affiliate Faculty Member, Center for Law, Science & Innovation; an Affiliate Faculty Member, Global Institute of Sustainability,School of Sustainability, Arizona State University.]

In general, climate change conferences of the parties (COPs) can be divided into big-COPs and mini-COPs. Of course, all COPs nowadays are big in terms of the number of participants and the general air of frenzy. But some have major issues to be resolved and others are comparatively inconsequential. After a string of big-COPs, dating back to the 2009 Copenhagen conference and culminating in last year’s Paris conference, last month’s Marrakesh conference was definitely a mini-COP. Very little had be – or was – decided. The main outcome was the adoption of a work plan to elaborate the Paris Agreement’s rulebook, consisting of technical workshops, facilitated roundtables and other meetings, scheduled to wrap up in 2018.

Until the US presidential election, Marrakech had been expected to be a celebration of the Paris Agreement’s exceptionally rapid entry into force, which made the Marrakesh conference not only the 22nd meeting of the parties to the UN Framework Convention on Climate Change (COP-22), but also the 1st meeting of the parties to the Paris Agreement (CMA-1). The prospect of a Trump presidency cast a pall over the proceedings, but did not significantly affect the actual negotiations, which, for better or worse, have an internal dynamic largely impervious to external events.

Was the conference a success? As usual, the glass was both half full and half empty.

On the positive side, the conference did what it had to do, namely, to begin the process of elaborating the Paris Agreement’s rules. In contrast to the Kyoto Protocol, whose rules significantly shaped party’s obligations and implementation options and had to be finalized before countries could ratify, the Paris Agreement will be able to operate even if no additional rules are ever agreed. Nevertheless, the development of more detailed rules on transparency, accounting, and periodic global stocktakes of progress will play a crucial role in making the agreement effective. And rules are needed to operationalize the agreement’s new market mechanism to reduce emissions and promote sustainable development as well as its new implementation and compliance mechanism. In Marrakech, there was only limited substantive discussion of possible rules. Instead, the focus was procedural, resulting in the adoption of a work plan and timetable to reach final decisions in 2018.

Another positive feature of the Marrakech meeting was the reaction by states and business to the prospect that the incoming Trump Administration might walk away from the Paris Agreement. Although some feared that this might lead others to withdraw as well, leading to an unraveling of the UN climate regime, there was a general reaffirmation of the Paris Agreement by parties, cities, regional governments, business, and NGOs. In a Marrakech Action Proclamation, states declared that the “extraordinary momentum on climate change worldwide … is irreversible.” Of course, these are only words and if the Trump Administration does, in the end, withdraw from the Paris Agreement, other states may use this as a reason to do so as well. But the signals from Marrakech suggest that the Paris Agreement will move forward, regardless of what the United States decides to do.

But there were also glass-half-empty elements to the Marrakech conference. After a surge of momentum over the past year, beginning with the adoption of the Paris Agreement and continuing this fall with the Montreal Protocol amendment to phasedown HFCs, the decision by ICAO to create a market mechanism to limit emissions from civil aviation, and the early entry into force of the Paris Agreement, the Marrakech meeting represented a reversion to business as usual – that is, to the slow pace characteristic of the international climate regime.

A key question coming out of Paris was whether the Paris Agreement had finally moved the climate regime into a “normal” phase of routine, technical work, by resolving, at least for the time being, the key political issues that had bedeviled the climate regime since its inception – in particular, how to differentiate the commitments of developed and developing countries? Would the move in the Paris Agreement away from categorical, annex-based differentiation stick, or would parties seek to reintroduce annex-based differentiation in elaborating the Paris Agreement’s rules? To few observers’ surprise, the Marrakech meeting emphatically demonstrated that the Paris Agreement had not put the issue of differentiation to bed, and that it will continue to be a major source of debate in elaborating the Paris Agreement’s rules.

Two issues that preoccupied the discussions in Marrakech were whether the Paris Agreement would continue the Adaptation Fund established by the Kyoto Protocol, and whether and how to address various “orphan” elements of the Paris Agreement that had not been addressed by the work program coming out of Paris – for example, whether to establish common time frames for nationally-determined contributions and beginning a process to develop a 2025 finance goal. Neither of these issues is particularly pressing or momentous compared to the issues negotiated in the Paris Agreement. Nevertheless, the Marrakech negotiations were as contentious as ever, running into the early hours of Saturday morning – confirming the climate regime’s version of Parkinson’s law, namely, that climate negotiations expand to exceed available time.

Despite their kabuki-like character, do the annual climate COPs serve a useful function? Or they should be held less frequently – say, every two years – as some have suggested? Certainly, the actual issues decided in Marrakech do not justify the vast spectacle that COPs have become. Nevertheless, the annual COPs do provide an important focal point for climate action. They bring together a wide array of actors and focus political and public attention on the climate change problem. In Marrakesh, the conference also served as a platform for states, cities, regional governments, businesses, and NGOs to reaffirm their commitment to address climate change, despite the US presidential election. At least in the short term, that may be the most important contribution of the Marrakech conference.
For more on the Marrakech conference, see the summary by the Center for Climate and Energy Solutions, available here.

http://opiniojuris.org/2016/12/09/marrakech-express-going-slow-but-still-on-track/

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