Defining the Shape of Compliance at the Durban Climate Talks
Parties to the United Nations Framework Convention on Climate Change (UNFCCC) are meeting in Durban, South Africa, from November 28 to December 9, 2011, to discuss the future of collective action by the nations of the world to curb climate change. Most relevant to environmental compliance and enforcement practitioners are negotiations concerning (1) national reporting, (2) rules for accounting for emissions offsets from forestry practices, and (3) accountability mechanisms relating to the provision of support for developing countries.
Parties to the UNFCCC recognize that the international community cannot monitor compliance with commitments without trustworthy information on countries’ mitigation and support activities. Much of what needs to be accomplished in Durban focuses on rules relating to the content, accuracy, transparency, completeness, and comparability of information that countries will be required to report.
COP17 negotiations will cover two types of topics that are critical to the integrity of information on emissions, mitigation actions, and provisions of support. The first concerns the form and content of nationally provided data, consisting of annual greenhouse gas inventories, national communications, and biennial reports. The second area of concern focuses on a framework for ensuring that countries are up to the task of reliably providing this information. These procedures consist of international assessment and review (IAR) for developed countries and international consultation and analysis (ICA) for developing countries. Together, these measures comprise the framework for measurement, reporting, and verification (MRV) that is the central mechanism for ensuring compliance.
Defining compliance with mitigation commitments
Last year’s climate change conference in Cancun, Mexico, culminated in a set of agreements (“the Cancun Agreements”) which addressed the principles that must be observed in the ICA and IAR reporting processes and in the next generation of reporting requirements. During the months leading up to the Durban conference, over forty countries submitted views on the implementation of these mandates. One commonly shared concern is that developing countries have widely varying capabilities for providing the quantity, quality, and frequency of data that will be needed in order to ensure accurate assessments and comparisons of mitigation performance. This issue is especially relevant to negotiations on the content of biennial reports for developing countries, which must ensure transparency, comparability and utility, without being overly burdensome. A second concern is the fact that there is broad diversity in the mitigation actions that countries will undertake. This presents challenges for achieving comparability and transparency, but the Parties will need to establish guidelines nonetheless if they are to move ahead. A third topic is the manner in which ICA and IAR processes will be conducted. There is significant concern among developing countries that ICA should be a facilitative but not intrude upon national sovereignty.
Compliance in the context of forests and REDD+
REDD+ refers to a range of mitigation activities relating to reducing emissions from deforestation and forest degradation, as well as other forest management practices. Defining a rules for managing REDD+ presents especially difficult challenges because there are so many factors that can compromise assessments of forest-related mitigation actions. Recognizing the special complexities involved, the Cancun Agreements (par 71(c)) called for each country contemplating the implementation of REDD+ to undertake a careful, measured approach to designing and managing a robust, transparent forest monitoring system that takes into national circumstances. Cancun (par. 73) also addressed the fact that financial and technological support from developed countries would be needed in many cases to achieve reliable and effective results. Due to the challenges involved in establishing reliable rules and guidelines for REDD+, countries are asked to proceed in phases, starting with the development of national strategies, policies, and capacity-building, to be followed by a second phase of capacity-building, technology development and transfer and pilot projects, and finally culminating in “results-based actions” that will be comprehensively measured, reported and verified.
Defining compliance for commitments of support
Developing rules for evaluating the extent to which developed countries have followed through with commitments of financial, technological, and capacity-building support presents its own set of problems. One of the most vexing challenges is the characterization of support that developed countries provide developing countries meet climate objectives. Under the UNFCCC, developed countries must provide climate mitigation support that is “new and additional.” This has been widely interpreted to mean support that is separate from and above general economic development assistance. Yet funds that have been provided in the past frequently do not permit this clear distinction, since those funds may have multiple purposes (economic development and climate). Although the OECD’s Rio Markers have often been used to determine the character of funds that are used for sustainable development objectives, they do not cover the range of mitigation activities, spillover benefits, and sources of support that may be involved in climate-related activities. Some participants question whether it will ever be possible to devise strict, standardized definitions of climate support that will permit the tracking of all support over time and in all circumstances.
Irrespective of whether participants in the Durban conference find significant common in committing to climate mitigation and support, they can make valuable progress in defining rules for climate-related compliance. There is no need to begin from scratch. Attempts to address many of the MRV issues that the negotiators currently face have already been made once before, in defining compliance procedures for the Kyoto Protocol. Without a doubt, all of these measures must be refined, improved, and in some cases discarded, but they provide a wealth of experience with which to go forward.