Climate change negotiations: legal and other issues on the road to Paris.

• Author: Biniaz, Susan
• Position: New Beginnings, Resets & Pivots: The International Legal Practice of the Obama Administration

This article is born of a panel discussion from September 18, 2015, regarding "Regulating and Treaty-Making: Addressing Climate Change under the Obama Presidency. " The article examines issues that affected discussions shortly before the final negotiations at the United Nations Climate Change Conference in Paris in 2015.

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Thank you for having me. I would like to address some of the issues surrounding the current climate change negotiations. They are in their fourth year and are expected to culminate in an agreement on December 11th in Paris.

We are operating under the so-called "Durban mandate, which has two features worth mentioning:

* The first feature is that the agreement under negotiation is to be "applicable to all Parties." That may sound tautological, in that an agreement is, of course, applicable to all of its Parties. But that phrase was actually very significant politically, given the history of the climate change regime. The Berlin mandate set the parameters of the negotiation that led to the Kyoto Protocol. It provided, in essence, that the agreement was to be "applicable to some," i.e., it excluded any new commitments for developing countries. In this respect, the Durban mandate set the expectation for quite a different outcome than the Kyoto Protocol.

* The second feature is that the agreement is to have some type of "legal force." This does not necessarily mean that the outcome must be a fully legally binding instrument. At the same time, the clear intent was to create something with more legal content than the 2009 Copenhagen Accord, which was an entirely non-legally binding instrument.

Now I would like to turn to some of the current issues. I will start with the question of "ambition." There seems to be widespread consensus that the agreement should be designed to be "ambitious," and, when countries use this descriptor, they generally mean ambitious in relation to the agreed global temperature goal (i.e., keeping the increase below two degrees Celsius above pre-industrial levels). The challenge is how to promote ambition in a way that also encourages broad participation in the ultimate agreement.

There is the theoretical option of taking the global temperature goal, translating it into the maximum allowable level of global greenhouse gas emissions, and allocating a particular amount to each Party. Such an approach would secure the necessary ambition, but it would not achieve broad participation. Many countries...