Justin Gundlach
Climate Law Fellow

Justin spent the past week at the Paris climate conference working on behalf ofCOP21 logo the Legal Response Initiative

Negotiators at the Paris climate conference have completed a first draft of an agreement, but one that is full of “brackets” – meaning that many of the key provisions contain several alternative terms, reflecting specified disagreements among the parties. Take, for example, the following bracketed terms in Article 2, paragraph 1: “Parties agree to take urgent action and enhance cooperation and support so as: (a) To hold the increase in the global average temperature [below 1.5 °C] [or] [well below 2 °C] above pre-industrial levels by ensuring deep reductions in global greenhouse gas [net] emissions.” The first three bracketed terms reflect disagreement among the parties over how to define the agreement’s basic emissions reduction goal, expressed in terms of global average temperature rise. As for the fourth bracketed term, including it arguably contemplates a scenario in which developing countries’ emissions continue to grow but are more than offset by developed countries’ emissions reductions. As inclusion of such contentious terms reflects, the first draft is not meant to resolve basic disagreements, but rather to isolate and highlight them so that higher-ranking ministers (as opposed to lower-ranking diplomats) can hash out compromises quickly.

That some issues remain bracketed in the first draft is predictable. This is especially true in regards to the question of whether or not and how to include a “loss and damage” provision. One version of such a provision could, arguably, be read to establish legal liability for past emissions of anthropogenic greenhouse gas (GHG)—something that developed nations are at pains to avoid. Excluding such a provision altogether, however, is unacceptable for many countries that have historically emitted few anthropogenic GHGs yet face significant adverse consequences from climate change. Currently, Article 5 of the draft is titled “Loss and Damage,” and, as written, would incorporate the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts into the new agreement. However, the whole of Article 5 is bracketed, and follows a note indicating that the Article’s contents might be included in Article 4, “Adaptation,” instead of standing alone as Article 5.

This post focuses on disagreement over a point more subtle than the examples above: the entry into force provision. As explained below the jump, the question of how the agreement should take effect highlights a basic problem for negotiators, namely building consensus on the derivation of national and aggregated GHG emissions inventories.

Conceptually, an entry into force provision is simple. It specifies the event or timing that will cause an agreement to transform from mere words on a page into a document with material legal implications for those party to it. The three options for triggering entry into force currently being considered in Paris are as follows: 1) adoption of the agreement by a minimum number of negotiating parties; 2) adoption by parties whose aggregate emissions exceed a particular numeric or percentage threshold; or 3) adoption by a group of parties that satisfies both 1) and 2). The draft text currently looks like this:

“This Agreement shall enter into force on the thirtieth day after the date on which at least [X] [50][55][100] [the ¾] Parties to the Convention [including all Annex I Parties] [and][or] [on which Parties to the Convention accounting for [55][60][70][X] per cent of total [net] global greenhouse gas emissions in [[date][1990][2000][2010][2012]].”

Even though these options are all simply stated, implementing the second or third of them would require answering an intertwined set of technical and political questions about how to count and attribute emissions to all the parties to the agreement. Thus discussion of entry into force has encountered the distrust and jostling for position that any thorough and uniform emissions accounting must overcome.

The question of how to count and attribute GHGs is crucially important and not new, but also is not settled—even though the Intergovernmental Panel on Climate Change (IPCC) has worked for two decades to develop and refine guidelines for analytically rigorous emissions inventories. In anticipation of COP21 in Paris, developed countries submitted inventories consistent with those guidelines for the years 1990-2012, and developing countries, which in many cases lack the capacity to compile complete and accurate inventories, submitted data from more sporadic and generally incomplete data collection efforts. In addition, political angling consistently enters into technical discussions in at least two places: 1) when considering how to account for emissions related to land use, and 2) when deciding on a baseline year for analyzing emissions changes—note that the block of draft text quoted above presents five(!) options for a baseline year, and that China’s emissions profile is categorically different today relative to 1990.

The Intergovernmental Panel on Climate Change (IPCC) has developed parameters for taking a GHG inventory, and the UNFCCC Secretariat has made several resources available to facilitate inventorying by less developed countries. For example, a Consultative Group of Experts, operating pursuant to a decision taken at the Warsaw COP in 2013, has conducted seminars and webinars with developing countries and the UNFCCC has made GHG accounting software available for several years. But even this sort of facilitation necessarily entails use of one approach instead of others, and the decisions that lead to any particular approach will necessarily have “winners” and “losers” in terms of the accounting of emissions and carbon sinks. In addition, notwithstanding a voting process intended to represent all parties in the IPCC leadership, distrust of methodologies and tools developed elsewhere persists in many developing countries.

By using a non-emissions-based threshold, the parties could sidestep the need to resolve disagreements over country-level GHG emissions accounting in the context of a decision about how the agreement should enter into force. But, of course, they cannot avoid the need for generally accepted emissions accounting principles more generally. As less than a week remains to negotiate an agreement here in Paris, resolution will almost certainly take the form of a further technical process, combined with a stipulation that all will abide by its outcomes.


  1. 1. What is the URL that starts with http://unfccc6.meta-fusion.com/cop21 where you found this? I want to see it there.

    2. What you have found is a poison pill. There are plenty of them since COP6. Poison pills prevent any real action from happening and will continue to prevent action until Global Warming [GW] has killed almost all humans. I want you to show me where the poison pills are kept now.

    Another poison pill is a prohibition on using nuclear power to mitigate CO2 production. Nuclear power is the only technology we have that actually mitigates CO2 production for most places. Wind and solar are so intermittent that they must be “backed up” 70% of the time by burning natural gas. Wind and solar are nothing else but an excuse to close nuclear power plants so that more fossil fuels can be burned.

    I am an engineer, but I have no interest, financial or otherwise, in the nuclear power industry. My only interest is in stopping Global Warming. My only income is from the US civil service retirement system.

    I have no interest, financial or otherwise, in the electric utility industry, except that I buy electricity from the local utility. I have never worked for the nuclear power industry.

    Please send the requested URLs to me by email.

  2. We are headed for a human population crash from 7 Billion to 70 thousand or zero people within 13 years. We don’t have time for research or fooling around with renewables. Causes of a population crash:

    1. Global Warming [GW] will cause civilization to collapse within 13 years because GW will cause the rain to move and the rain move will force agriculture to collapse.

    2. Population biologist William Catton says that we in the US are overcrowded; immigration must reverse. Collapse from overpopulation could happen any time now. The Earth has 4 Billion too many people. An overshoot in population requires an equal undershoot. We overshot by 4 billion, and the consequence is an undershoot by 4 billion. The carrying capacity is 3 billion. 3 billion minus 4 billion is zero because there can’t be minus 1 billion people.

    3. Aquifers running dry No irrigation, no wheat. No wheat, no bread.

    4. Resource depletion
    4A oil
    4B minerals

    War will kill a lot of people. Famine will kill 8 billion out of 7 billion. 7-8=-1, but with population, the crash ends at zero.

    NATURE has lots of other ways to kill humans. Don’t provoke her.

    There is no room for Annex 2 countries to make CO2. We are already 50 ppm over the 350 ppm limit for CO2 production. The way to deal with the recalcitrant is to bomb their coal fired power plants. The alternative is extinction of the human race. Sorry, but Mother Nature makes the rules, not me.

    The population crash will happen before 2040, possibly as early as 2022. There is simply no time for this eternal refusal to take action. You should not expect to be among the survivors, if any.

  3. Nuclear is the only one that can make base load power and not make CO2. Nuclear is by far the safest, even safer than wind or solar. We must go 100% nuclear right now to avoid our own extinction.

    List of papers predicting worldwide famine due to Global Warming between 2022 and 2040. We humans will probably be extinct by 2040 if we don’t go 100% nuclear right now.

    Study Predicts Impending Collapse Of Industrial Civilization

    Scientific Model Indicates Climate Change-Induced Collapse of Civilization by 2040

    Extreme weather could trigger frequent global food shocks

    “Accuracy Check on Predictions of Near-Term Collapse” by Barton Paul Levenson

    233 Barton Paul Levenson says:

    “Food System Shock” Food prices go up 500% by 2030. Lloyd’s of London insurance

    “Drought Under Global Warming: a Review” by Aiguo Dai

    “Preliminary Analysis of a Global Drought Time Series” by Barton Paul Levenson, not yet published, but amended to say 2028.


    Book: ”Storms of my Grandchildren” by James Hansen


  4. One would hope that whatever the COP decides to do about international redress, that existing law would not be weakened directly or by inference. Just one early example, of course, is the ruling in the late 1940’s Trail Smelters Arbitration that established the basic duty of each country not to harm the environment of another, in particular, through air pollution, and the duty to alter the source and control harmful activities the results of which are not de minimus.

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