Achieving consensus in climate change.

Position:Proceedings of the 110th Annual Meeting of the American Society of International Law: Charting New Frontiers in International Law - Discussion

This panel was convened at 9:00 a.m., Thursday, March 31, 2016 by its moderator Hari Osofsky of the University of Minnesota Law School, who introduced the panelists: Susan Biniaz of the U.S. Department of State; Lisa Benjamin of The College of the Bahamas; Daniel Bodansky of Arizona State University Sandra Day O'Connor College of Law; and Yamide Dagnet of the World Resources Institute.


It is an honor and a pleasure to welcome you and to have the opportunity to moderate a conversation among some key participants and experts about the December 2015 Paris Agreement on Climate Change, which is a crucial step forward in our multilateral climate change regime.

For those of you who do not know me, I am Hari Osofsky. I am a professor at the University of Minnesota Law School, where I am the faculty director of the Energy Transition Lab. Most relevant to this panel, though, I chaired the American Society of International Law's Observer Delegation to the Paris negotiations and cochair its international environmental law interest group.

Everyone in the room probably knows that in December 2015, we had a major new agreement on climate change in Paris. I am really grateful to the Program Committee for including this late-breaking conversation on the program. This agreement, which is often referred to as historic, is really an important step forward. We have an amazing group of speakers today who can bring a range of perspectives on this topic.

This is one of the nontraditional panel formats. We thought rather than have people stand up and give sequential talks on the Paris Agreement, that it might be more interesting to do it in a roundtable format. What I am going to do, as your moderator, is ask a series of questions of our amazing panelists in four main topic streams. We are going to talk some about the road to Paris, the negotiations themselves, the agreement that came out of the negotiations, and the future and where to go from here.

But before I do that, I want to just very briefly let you know who our wonderful panelists are.

Daniel Bodansky is the Foundation Professor at the Sandra Day O'Connor College of Law at Arizona State University. He is an extremely accomplished academic with deep expertise in international environment law and climate change, but most relevantly for our panel, he served as the Climate Change Coordinator and Attorney Adviser at the U.S. Department of State, in addition to consulting for the United Nations in the areas of climate change and tobacco control. Since 2001, Professor Bodansky has worked with the Center for Climate Change and Energy Solutions, also known as C2ES, formerly the Pew Center on Global Climate Change, as a consultant and adviser, and he participated in a dialogue involving senior negotiators in the lead up to Paris. He also provided advice to the Swiss Government pre-Paris on possible provisions to include in the agreement. And he participated in a number of different expert meetings.

Lisa Benjamin is an assistant professor at the College of the Bahamas, where she teaches international and Caribbean environmental law, international trade, intellectual property, and company law. She is the founder of their Environmental Law Clinic and a co-founder of the Climate Change Initiative at the College of the Bahamas, a member of the Bahamas Trade Commission, and a director of the Bahamas Protected Areas Fund. Most relevant to our conversation today, though, she was a member of the Bahamian delegation to the United Nations Framework Convention on Climate Change (UNFCCC) Advanced Durban Platform Negotiations, and is a member of the Compliance Committee in the Facilitative Branch of the UNFCCC.

Sue Biniaz has been in the Office of the Legal Adviser for the State Department since the 1980s. She headed the Office for European Affairs, and the Office for Oceans, Environment, and Science before spending seven years as a Deputy Legal Adviser. She has been a principal U.S. government lawyer on the climate change negotiations since 1989, including on the Framework Convention, the Kyoto Protocol, the Copenhagen Agreement, and the Paris Agreement.

Yamide Dagnet is a senior associate with the Climate Program of the World Resources Institute (WRI) and leads the UNFCCC work at WRI. In the run-up to the Conference of Parties 21 (COP21), she managed the Agreement for Climate Transformation 2015 project focused on the COP21, which is, for anyone who does not know, the Conference of Parties that resulted in the Paris Agreement. Previously, she worked for the UK Department of Energy and Climate Change, where she was the UK and EU lead negotiator on transparency issues, managed the UK Greenhouse Gas Inventory, and was the UK deputy focal point for the Intergovernmental Panel on Climate Change. She also worked for the Ministry of Environment and Sustainable Development in France as a focal point for the EU neighborhood policy and twinning program, and is a project manager for bilateral cooperation with Eastern European countries and Central Asia.

We have an enormous depth and breadth of expertise on climate change generally, and the Paris Agreement in particular. What I am going to do, without any further ado, is move us into the first set of questions. As I said, we are going to start in the past and really think about the road to Paris first.

The first thing that our panelists are going to speak to is how this agreement emerged from the lessons that we learned both from efforts to create the Kyoto Protocol and the difficulties that we had at the Copenhagen negotiations. I am going to turn to each of them to talk briefly regarding how it evolved from that, and maybe also to discuss this debate over a one-track versus two-track approach and how that evolved into the Paris Agreement.


I will just start with a little bit of the history. After the Kyoto Protocol came into force, the question became, what to do next? That question really emerged in 2004-2005. The Kyoto Protocol's first commitment period dealt with the five-year period from 2008 to 2012. The issue was what to do post-2012. The Kyoto Protocol originally was intended to be of indefinite duration with a first commitment period, a second period, and so forth and so on. Developing countries therefore pushed to begin negotiations on developed country targets under the second Kyoto commitment period. But the Kyoto Protocol only encompassed about a quarter of global emissions, and there was not a huge appetite among countries with Kyoto emission targets to negotiate new targets, unless the countries not covered by the Kyoto Protocol took parallel action. So, a parallel process was launched by the 2007 Bali Action Plan to develop some further instrument under the Framework Convention that would apply more widely than the Kyoto Protocol.

There were thus two tracks going forward after 2007, one to develop a second commitment period under Kyoto, and the other under the Bali Action Plan to strengthen cooperative action under the Convention. The Copenhagen Accord addressed only the second track, that is, further cooperation under the Framework Convention, and it remained unclear exactly what the future of the Protocol would be. I think the compromise in Durban in 2011, which launched the Paris negotiation, was agreement by the Kyoto Protocol parties to have a second commitment period that would run through 2020, in exchange for agreement by the Convention parties to begin negotiating another instrument with legal force to deal with post-2020.

So, the negotiation on the post-2020 regime did not continue the two-track approach, one under the Kyoto Protocol and the other under the Framework Convention. Rather, it consisted of essentially a single track going forward. There was no explicit decision not to have a third commitment period under Kyoto, but I think over time it became apparent that there would be a single instrument going forward after 2020, and that was the focus of the negotiations leading up to the Paris conference in December.


I think just to very briefly add to that, it was really Durban that established Workstream 1, which would lead to the Paris Agreement, and then Workstream 2, which was the pre-2020 ambition because Paris is only scheduled to begin in 2020. The Durban COP established what is called the Durban pillars, which were the six main subjects that Paris would cover.

It was the Warsaw decision that pushed everyone toward the bottom-up approach under one agreement where parties were invited to submit nationally determined contributions. There was some debate for a long time about whether it would be top-down or bottom-up, and whether it would be this nationally determined approach. I think the latter won the day in Warsaw. Although it was really up to the parties to decide this in Paris certain countries, particularly small island states, expressed a real concern about nationally determined contributions.

But I think Durban really set the mandate, and then Warsaw cemented the mandate of nationally determined contributions.


In terms of lessons learned, I will just focus on a few things. Kyoto had legally binding targets that were negotiated. It applied to developed countries only essentially, and it was very heavy on rules. I would say the lesson learned from that was--because there was not very broad participation in it, and a lot of countries refused to join the second commitment period--that it was too bifurcated. In other words, it was too much on developed countries, not enough on developing countries, it was too top-down, too heavily regulated, and it was too legal, it was everyone thinking it was basically legally binding.

Then in Copenhagen, in sharp contrast, you had nonlegally binding targets bottom-up in the sense that countries came forward with whatever they wanted...

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