Organisation of Climate Negotiations Under the UNFCCC
Since the early 1990s, climate negotiations under the UNFCCC have taken place during multiple ‘rounds’ as described in Chap. 1. Initially, the Intergovernmental Negotiation Committee (INC) was the main negotiation forum which prepared the text of the UNFCCC that was adopted in 1992 (see Chap. 3) and which continued until the first Conference of the Parties (COP) in Berlin (Germany, March-April 1995). Since then, the COP, established by the UNFCCC (1992, p. 17, Art. 7), has been the central body for international climate negotiations. The COP is hosted
Fig. 2.3 Summary of main UNFCCC Bodies (UNFCCC) (author’s own elaboration)
annually during two week-sessions, usually by the end of the year, by either a developed or a developing country. Generally, countries try to apply the ‘rule’ that when a COP is hosted by a developed country in one year, then the next year a developing country will host the session. The ground rules for the process of negotiations within the context of the UNFCCC, as further explained in this section, have been determined by UNFCCC (1992). In the course of ongoing negotiations, additional bodies with their accompanying operational rules have been added to the UNFCCC organisational structure, such as the Subsidiary Bodies (SB, for advice and implementation, see below), the Ad Hoc Working Group on the Berlin Mandate (1995-1997, see Chap. 4), the Ad Hoc Working Group on the Durban Platform (2011-2015, see Chap. 5), the CDM Executive Board (2005-ongoing) and the Technology Mechanism (2010-ongoing) (see Fig. 2.3 for an overview of current bodies under the UNFCCC, as per January 2016, after the adoption of the Paris Agreement). These bodies receive their mandates from the COP, which also appoints their governing boards. The boards determine their operational processes and report annually to the COP.
Between 1995 and 1997, COP negotiations focussed on the Berlin Mandate to agree on a protocol with further specific (quantified) climate policy actions. After the conclusion on the Kyoto Protocol in 1997, negotiations focussed on modalities and procedures for successful implementation of protocol agreements.
An important role in this process was played by the Subsidiary Body for Scientific and Technological Advice (SBSTA) of the Subsidiary Body for Implementation (SBI). These two bodies support the COP negotiation process and negotiators meet usually twice a year for these discussions, during spring (May-June) and during the first week of the COP by the end of the year. As per June 2016, 44 SBSTA and SBI sessions have been held in total.
In 2005, when the Kyoto Protocol formally entered into force, after receipt of the Russian instrument of ratification in November 2004, a new negotiation track was established under the COP which had the objective to work on a climate agreement for the period after 2012 (to cover the period after the first commitment period of the Kyoto Protocol). This negotiation track was organised under the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP) (UNFCCC-CMP 2006, p. 3, para 2). In 2007, at the COP at Bali (Indonesia), a second, parallel negotiation track was established under the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA). The reason for having two working groups for negotiations on a post-2012 climate agreement was that not all UNFCCC Parties had ratified the Kyoto Protocol (yet) (among these countries was the USA). Therefore, limiting the negotiations to Parties to the Kyoto Protocol would exclude these non-ratifying Parties from post-2012 negotiation. AWG-LCA was aimed at keeping these Parties ‘in the loop’ and it was hoped that, eventually, both working group tracks would come together by 2012 (see Chap. 5 for a more detailed discussion on these parallel negotiation tracks).
As is discussed in Chap. 5, the Copenhagen COP session in 2009 (COP-15) failed at reaching a climate agreement as successor of the Kyoto Protocol’s first commitment period. As a consequence, at COP-17 in Durban (December 2011) a new negotiation track was established to conclude on a climate policy regime by 2015, which would need to become effective after 2020. At COP-18 in Doha (December 2012) work on this Durban Platform for Enhanced Action was started and the work on the AWG-LCA and AWG-KP formally concluded. During this overall negotiation process of over 100 meetings, several milestones were achieved, which are summarised in Table 2.1 for milestones achieved at COP sessions.
In terms of milestones, COP-1 (Berlin Mandate), COP-3 (Kyoto Protocol), COP-6bis (Bonn Agreement), COP-7 (Marrakech Accords), COP-13 (Bali Plan of Action), COP-16 (Cancun Agreements), COP-17 (Durban Platform) and COP-21 (Paris Agreement) may be considered (arbitrarily though) the most important negotiation sessions. Most of the other COPs became ‘intermediate’ sessions, which was also often a consequence of the time schedules agreed at earlier COPs. The Berlin Mandate of 1995, for example, had a deadline for 1997, which implied that COP-2 would mainly have to create the momentum to keep negotiations on track. COP-17 formalised a new negotiation process towards post-2020 climate policy making, to be concluded in Paris (2015).
The sequence of annual ‘milestone’ and ‘intermediate’ COP sessions have turned out to allow for a flexible negotiation process in the sense that topics can be placed on the agenda of a COP which have been identified at an earlier COP and/or
Table 2.1 COP sessions held and their milestones
Table 2.1 (continued)
by a preparatory meeting. COP practice shows that identification of issues is usually initiated by one or more Parties at a COP discussion, which is then considered for further consideration, either by the same COP, or a next session of the COP or a subsidiary body or ad hoc working group. This generally supports addressing more flexibly the game theoretical aspects as explained elsewhere in this Chapter and handling the issue, as discussed in Chap. 1, that climate policy target setting, especially during the 1990s, but also during the negotiations towards the Paris Agreement, has often been subject of climate negotiations, rather than that negotiators have taken scientifically determined targets as a given.
Countries that have ratified the UNFCCC have access to the COP negotiations. Since the entry-into-force of the Kyoto Protocol on 16 February 2005, which was 90 days after the submission of the instrument of ratification by the Russian Federation, the COP has also served as the meeting of the Parties that have ratified the Kyoto Protocol (CMP). AWG-KP negotiations, as mentioned above, therefore took place under supervision of the CMP. The implication of this change is that countries that have ratified the UNFCCC but which had not (yet) ratified the Kyoto Protocol (e.g., USA and, until May 2009, Turkey) could only participate at CMP sessions as observers, without the right to vote, upon invitation of the CMP
President (generally the Minister for the Environment or Foreign Affairs of the hosting country).
As explained above, the sessions of the COP are prepared and supported by the so-called Subsidiary Bodies (SB) and ad hoc working groups (AWG). SB and AWG sessions take place somewhat ‘in the shadow’ with less of the pressure to achieve agreements which is often so strongly felt at COPs. It is also important to note that these more technical sessions are not pressurised with the necessity to gain political prestige from hosting the sessions, as these sessions are generally held in Bonn and organised by the UNFCCC Secretariat, mostly in May/June. SB sessions are also held in conjunction with the COP for the final preparations of the eventual COP decisions. AWG sessions were held more often throughout the year, depending on the political agenda. For example, the AWG-Durban Platform met 15 times between May 2012 and December 2015, of which five times during 2015 as preparation for the Paris COP (UNFCCC 2015).
Decision-making by the COP takes place according to a procedure that has never officially been adopted. Before the first session of the COP in 1995, the UNFCCC Secretariat had prepared a voting procedure upon which Parties could not reach agreement (UNFCCC 1996; Depledge 2004). As a consequence, “in the absence of any specified majority voting rule, there is currently a broad understanding in the climate change regime that substantive decisions should be adopted by consensus” (Depledge 2004, p. 5). More recent amendments to these rules state that the COP should make every effort to reach agreement by consensus, but where consensus cannot be reached, amendments to the UNFCCC and Kyoto Protocol may be adopted by a three-quarter majority vote of the Parties present and voting (Siegele 2013).
At this point, the President of the COP must ensure that two-third of the Parties are present at the meeting. However, this still requires a definition of what consensus means. In the context of the climate negotiations, consensus is generally achieved if there are no stated objections to a decision. The complication of consensus as a guiding principle for voting is that any Party can block decisions and that additional efforts are needed to adjust the decision text in such a way that it meets the concerns of the Party or Parties that have stated objections. This happened, for instance, at the ‘Copenhagen’ COP in 2009 when a few developing countries, among them Venezuela, Bolivia, Cuba and Nicaragua, rejected the Copenhagen Accords, so that it was not adopted. However, when a similar situation occurred at COP-16 in Cancfin, a year later, during AWG-LCA negotiations, “Colombia questioned how not having any agreement could be beneficial for the environment and, supported by Gabon, noted that consensus did not mean that one country could block decisions” (IISD 2010, p. 12) (see also Chap. 5).
In order to avoid situations where decisions are blocked by a small group of Parties, COP Presidents often establish small informal working groups (or ‘joint contact groups’, or ‘negotiating groups’, or ‘drafting groups’) to prepare decisions on particular topics during the COP. These groups consist of experts that form a fair representation of the UNFCCC regions, i.e. Africa, Asia, Central and Eastern Europe, Latin America and the Caribbean, and Western Europe and others, including Australia, Canada, New Zealand and USA. They are often chaired by a co-Chair from a developed country and a co-Chair from a developing country. Generally, when an informal working group has reached agreement on a particular issue and the decision text is presented to the COP plenary, consensus can more easily be reached.
In this process the SB sessions held in parallel with the COP play an important role (especially during the first week of the COP). The informal working group members have often already formed a similar working group at the annual SB and AWG sessions in Bonn (the May-June meetings mentioned above) where country representatives prepare first drafts of decision texts, which often have the form of consolidated texts based on proposals submitted by Parties. Then, at the COP, these consolidated texts can be further developed into COP decision texts, which become subject to the consensus ‘voting’ procedure. It should be noted that negotiations do often not take place at the plenary meetings of the COP. The working groups mentioned above, preferably with a balanced geographical division and specific competence, work on the texts and when they have completed their work and have reached agreement, these can be presented for conclusion to the Plenary of the COP.
The negotiations are furthermore supported by technical workshops organised by the UNFCCC Secretariat on issues that need further exploration by country representatives in consultation with third-party experts, who are invited to these workshops. In addition, negotiations during 2005-2015 resulted in new bodies to work on technology development and transfer (Technology Mechanism), finance (Green Climate Fund) and adaptation (Adaptation Fund Board) (see Fig. 2.3). These bodies are also populated by representatives of developed and developing countries and meet a few times a year at Bonn (van der Gaast and Begg 2012).
While preparing for the COP, its President often identifies the issues that could ‘break or make’ the COP. In order to already sort out some of the issues before the COP, the President can organise a small workshop with key players, about two months before the COP session. These key players are, for instance, the EU Presidency Trio (of incoming, present and former chairs of the EU Council), the main negotiators of important industrialised countries, the acting chair of the G-77&China, a representative of the Alliance of Small Island States (AOSIS), etc. This meeting generally offers a good opportunity for the President to show his/her “charm, cunning, humour, daring and a range of other techniques” (Depledge 2004, p. 6) that later may help to generate consensus at the COP. In addition, several COP Presidents in the past formed so-called ‘friends of the President’ groups, which are small gatherings of selected negotiators to support the President in preparing the negotiations, identifying key issues during the negotiations, and drafting compromise texts during the final stage of the COP sessions (at this stage also some ministers attending the Ministerial or high-level segment of the COP—generally the last two days of the session—could join the ‘friends’ group).
Obviously, inviting country representatives to the groups is a very delicate task for the President to perform as it requires a politically sensitive selection of key countries. One option to select negotiators is to select from each UN region one representative, so that all regions are represented. Another option, which is nowadays mostly used by COP Presidents, is to invite one representative from the various negotiation coalitions that have been active in the course of the climate negotiations over the past 20 years (see for an overview Box 2.1).
An example of using the latter option was at COP-6bis in Bonn (June 2001) which was chaired by the Dutch Minister of Environment, Mr. Jan Pronk. He had already intended to establish a negotiation table system with key negotiators selected from the country groups at COP-6 in November 2000, but then it was met with too much resistance, as within the groups it was difficult to appoint a ‘leading country’. At the Bonn COP session, Mr. Pronk tried again and this time a negotiation table could be formed with one chair per group to be taken by a spokesperson who was backed by a number of colleagues from the same group sitting on chairs behind him/her. Perhaps also the changed negotiation climate facilitated this set-up of the ‘friends’ group. After all, since the decision by US President Bush, early 2001, to consider the Kyoto Protocol “fatally flawed” (see Chap. 4), the remaining countries had become engaged in an intense diplomatic carousel with representatives from negotiation groups visiting each other in order to design strategies to save the protocol at the resumed session of COP-6 in Bonn.
Since the successful application of the ‘friends of the President’ formula at COP-6bis, it has also been applied by other COP Presidents, although not always with similar successes. The ‘friends’ groups do not always manage to step beyond political dividing lines, so that, during the final hours of the COP sessions, the President still needs to negotiate bilaterally with particular negotiators to strike final deals (Depledge 2004, p. 22). An important condition for organising such group or ‘friends’ discussions is that they keep all other countries and their negotiators included in the process. For example, when in 2009, before COP-15 in Copenhagen, rumours were heard about a Danish ‘President’s Text’ for guiding the COP negotiations, this immediately raised concerns among several country negotiators who felt excluded from the negotiation process (see Chap. 5 for a detailed discussion on this process).
Box 2.1. Groupings of UNFCCC Parties During Climate Negotiations
According to the UN tradition, Parties, while they are each represented by national delegations, are organised in five regional groups, mainly for administrative reasons:
In order to have their substantive interests better presented at negotiations, Parties usually organise themselves in ‘like-minded’ groups. According to the UNFCCC website, the main groups are:
Several of these groups have overlaps as countries are member of more than one group. For example, most of the countries that belong to SIDS, LDC and LMDC are also part of the G-77.
In addition, there are several other groups, such as OPEC (Organisation of Petroleum Exporting Countries), CACAM (Central Asia, Caucasus and Moldova), BASIC (Brazil, South Africa, India and China), and COMIFAC (Central African Forestry Commission), which speak with common voices at climate negotiation sessions.
Source: UNFCCC (2014b).
Finally, the COP sessions acquire an extra political dimension through the participation of ministers or high-level officials from the Parties in the concluding phase of the negotiations. The influence of ministers on the final outcome differs from case to case. Sometimes, ministers or high-level officials create a breakthrough in negotiations because their political power goes beyond the mandate of the official negotiators. The speech delivered by US Vice-President Al Gore in 1997 at COP-3 is seen as a good example of this effect. However, the high-level segment’s contribution to reaching an agreement is not always decisive. The outcome of the Copenhagen Climate Conference in 2009, as discussed in Chap. 5, is a clear example of how the high-level segment can lead to a negotiation process which mainly focuses on a relatively small number of ‘key’ countries (e.g., the countries with the highest greenhouse gas emissions) and ‘excludes’ others. Several ‘excluded’ negotiators, who had worked for almost four years on a negotiation text, only heard about an agreement through the Internet or via the press conference of US President Barack Obama. Eventually, some of them refused to adopt the