31 October 2016

Looking ahead to COP22

With the Marrakesh climate summit just days away, Tim Baines looks at some of the major areas for discussion.

Marrakesh is set to host COP 22

The 22nd session of the Conference of the Parties (COP 22) to the United Nations Framework Convention on Climate Change (UNFCCC) is scheduled to take place in Marrakesh from 7-18 November 2016. For the first time, the parties to the historic Paris Agreement, which was adopted in December of last year, will also be meeting. Attention will be focussed on getting into the nitty gritty of how to implement the provisions of the Paris Agreement.

What is the Paris Agreement?

Given the number of issues to be agreed, an important outcome of COP22/CMA1 will be a roadmap of how to resolve these issues so that the Paris Agreement can be fully operationalised by 2020

Under the Paris Agreement, all countries (including both developing and developed) agreed to make ambitious efforts to combat climate change and adapt to its effects. However, the agreement also provides for appropriate financial flows, a technology framework and an enhanced capacity building framework to be put in place. The agreement also provides for transparency of action and support by way of a transparency framework. The detailed rules and procedures for these elements of the agreement remain to be agreed, with the agreement itself currently only setting out broad principles.

Entry into force

Back in December last year the Paris Agreement was "adopted", but still needed to enter into legal force. This required at least 55 countries representing a total of 55% of global emissions to deposit their instruments of ratification. These entry into force tests have now been satisfied, and the Paris Agreement will enter into force on 4 November 2016.

Procedural issues

The Paris Agreement was not expected to enter into force as quickly as it has done. This means it was not envisaged that the first meeting of the parties to the Paris Agreement (called CMA1) would take place for at least another year. As the Paris Agreement provided for some outcomes to be agreed at CMA1, it seems likely that CMA1 will be suspended over the next couple of years to allow those discussions to take place. Given the number of issues to be agreed, an important outcome of COP22/CMA1 will be a roadmap of how to resolve these issues so that the Paris Agreement can be fully operationalised by 2020. We expect a lot of work to focus on agreeing such a roadmap, agreeing who or which forum will take forward various discussions and getting started on the negotiation of more detailed rules.



A key outcome of the Paris Agreement was an agreement to hold the increase in the global average temperature to well below 2°C above pre-industrial levels, and pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels. In order to help achieve this aim parties to the Paris Agreement are required to prepare, communicate and maintain Nationally Determined Contributions (NDCs). NDCs are to be prepared every five years and successive NDCs are to represent a progression beyond the Party's then current NDC. NDCs have already been prepared and submitted in the form of indicative NDCs.


The UNFCCC's Secretariat has published a synthesis of all indicative NDCs submitted to date and their effects. They currently indicate a clear divergence from the business as usual scenario. However, they do not indicate that countries are yet on track to achieve the levels of ambition required to meet the Paris Agreement's goals in a least costly way. More ambitious actions will need to be implemented across all sectors of the economy.

Consistency of NDCs

Further, the NDCs currently on the table take a wide variety of forms, cover different sectors, vary in detail and content, and express targets / aims in very different ways. Parties will continue to discuss issues such as whether some guidance should be common to all NDCs and some guidance specific to certain types of NDCs; whether there should be a differentiation in respect of NDCs between developed and developing countries; and how to reflect differences between parties' ability to prepare and implement NDCs. There are also discussions about what specific areas of NDCs require detailed guidance, and whether the obligation to prepare NDCs should be tied to the obligation of developed countries to provide support for doing so to developing countries.


Mitigation mechanisms

More ambitious actions will need to be implemented across all sectors of the economy

Outside of NDCs, three "mechanisms" that can be used to implement mitigation of emissions are set out in the Paris agreement. Working groups have been set up to discuss these mechanisms and those discussions will continue. One provision establishes a voluntary mechanism in respect of cooperative approaches using internationally transferred mitigation outcomes (ITMOs), which can be produced from any mechanism/procedure/protocol, without any reference to the authority of the COP. Another provides for the establishment of a mechanism to produce mitigation outcomes and support sustainable development, and which operates under the authority of the COP. This looks to be closer to the Clean Development Mechanism (CDM) established under the Kyoto Protocol. The Paris Agreement also provides a framework for "non-market approaches". Significant further work needs to be undertaken in order to establish these mechanisms in full. Parties have made submissions on these topics, but they remain relatively conceptual at this stage. Adoption of detailed rules appears to be a long way off for the time being.


There is a lot of emphasis on transparency and the need for consistent and accurate reporting of responses to climate change in the Paris Agreement. It provides for a review of the implementation of NDCs under an enhanced transparency framework, comprising a technical expert review and multilateral consideration. A five-yearly global stocktake will be implemented to assess collective progress towards achieving the purpose and long-term goals of the Agreement. A mechanism to facilitate implementation and promote compliance through an expert-based, non-adversarial and non-punitive committee is also required. Details regarding these requirements will need to be elaborated upon.

Outside the Agreement

Despite the ongoing negotiations outlined above (and many more parallel discussions), action is also happening on the ground. The International Civil Aviation Organisation has recently proposed an international emissions offsetting scheme. Costs of renewable energy technologies are falling rapidly, including in respect of solar and offshore wind. Renewable energy deployment is at its highest ever level. Emissions trading schemes are being implemented. Corporates are paying increasing attention to carbon disclosure and energy procurement, including entering into direct power purchase agreements with renewable energy generators. The Paris Agreement will help to put a framework around all of these activities, and perhaps most importantly, to develop a means for activities in different countries to be measured and accounted for in a consistent manner.

Tim Baines, Of Counsel at global law firm, Norton Rose Fulbright

More ambitious actions will need to be implemented across all sectors of the economy