II. LOCATING WARSAW: FROM DURBAN 2011 TO PARIS 2015

The international climate change regime comprises principally of the 1992 United Nations Framework Convention on Climate Change,Footnote ⁶ the 1997 Kyoto ProtocolFootnote ⁷ and the decisions of Parties under these instruments. Although these instruments are important first steps towards addressing climate change and its impacts, they are widely regarded as inadequate and inadequately implemented. At the Durban conference, 2011, Parties launched a process to negotiate a climate agreement that will come into effect and be implemented from 2020.Footnote ⁸ This process, christened the Ad-Hoc Working Group on the Durban Platform for Enhanced Action (ADP), is intended to craft the agreement that will govern, regulate and incentivize the next generation of climate actions. The ADP is expected to conclude its work and yield agreement by 2015.Footnote ⁹ The international community has, since Durban, engaged in intense negotiations, both in the context of this process and in other complementary plurilateral and multilateral fora, to inform and design an agreement that builds on, complements and may even replace part of the existing climate change regime. To assist them in meeting the 2015 deadline and managing their negotiating time, Parties decided at the Doha conference, 2012, to erect milestones along the way. Parties agreed to consider ‘elements for a draft negotiating text’ no later than the Lima conference, 2014, ‘with a view to making available a negotiating text before May 2015’.Footnote ¹⁰

The Warsaw conference, 2013, marked the halfway point between the launch of the work of the ADP and its scheduled end. Parties had through 2012 and 2013 aired views and differences in ‘workshop’ and ‘round table’ formats which albeit useful for that purpose, were not conducive to active negotiation. In Warsaw, therefore, keeping in mind the interim deadline of producing elements of a draft negotiating text by Lima, 2014, the Chairs of the ADP process decided to shift gears and nudge Parties into negotiating mode.Footnote ¹¹ To do so, they directed Parties' attention to delivering outcomes at Warsaw that could incentivize or create the conditions necessary for actions in 2014 that could pave the way to reaching agreement in 2015. Two issues raised by several Parties in this context assumed centre stage: first, the issue of domestic preparations across jurisdictions for the submission of national commitments to the 2015 agreement;Footnote ¹² and, second, the issue of informational requirements that would accompany such commitments to the 2015 agreement.Footnote ¹³ There is general agreement that Parties need to engage in 2014 in the domestic preparations necessary to arrive at commitments that can be inscribed in the 2015 agreement or be part of the 2015 package.Footnote ¹⁴ This is necessary not just to arrive at realistic and realizable commitments but also to generate ownership of and responsibility for them. There is also general agreement that these commitments will need to be accompanied by information sufficient to generate clarity about the nature, type and stringency of the commitments. The Chairs also sought to initiate the process of distilling elements for a negotiating text, but this met with less success.Footnote ¹⁵

III. THE RESULTS OF HUDDLE DIPLOMACY

After intense ‘huddling’ in various settings—the ‘huddle’ now being the preferred, ostensibly spontaneous mode of resolving final differencesFootnote ¹⁶—Parties arrived at the following language in relation to these two issues:

This awkward, lengthy and open-textured formulation, containing two caveats in relation to legal form, leaves many options on the table. Parties also decided to request the ADP ‘to identify … the information that Parties will provide when putting forward their contributions, without prejudice to the legal nature of the contributions’.Footnote ¹⁸ A close examination of these two seemingly prosaic paragraphs offers rich insights into the likely contours of the 2015 agreement.

IV. THE INCREASING SALIENCE OF HYBRID ARCHITECTURAL APPROACHES

The Copenhagen Accord, 2009Footnote ¹⁹ and the Cancun Agreements, 2010Footnote ²⁰ initiated the climate regime's experiments with the ‘bottom-up’ approach. The commitments and actions required by the Copenhagen Accord, 2009, were communicated by Parties and enshrined in the climate regime through the Cancun Agreements, 2010.Footnote ²¹ The Cancun Agreements merely took note of commitments and actions by developed and developing countries respectively. They neither prescribed the nature, type and stringency of commitments or actions to be taken by countries nor imposed any informational requirements or rules in relation to these commitments and actions. In this, the Cancun Agreements adopted a truly ‘bottom-up’ approach that deferred to national autonomy in arriving at commitments/actions in the face of diverse national circumstances and constraints. This ‘bottom-up’ approach led to qualified and conditional pre-2020 GHG mitigation pledgesFootnote ²² of breathtaking diversity, dubious rigour and limited climate impact.Footnote ²³ There are processes under way to understand ‘the diversity of the nationally appropriate mitigation actions’ submitted by developing countries,Footnote ²⁴ and to ‘clarify[ing] the quantified economy-wide emission reduction targets’ submitted by developed countries.Footnote ²⁵ It has rapidly become evident, however, that such a ‘bottom-up’ approach has its limits, at least, to the extent that the regime needs the ‘bottom-up’ to add up to what is required to reach the below 2 °C global temperature goal.Footnote ²⁶ As a result of this experience, and ongoing difficulties associated with clarifying and understanding the current commitments and actions, in the negotiations for the 2015 agreement there is an effort to discipline or circumscribe the discretion available to countries. The Warsaw decision inviting Parties to initiate/intensify domestic preparations for ‘nationally determined’ contributions, firmly posits the ‘bottom-up’ approach as the starting point. Thus leaving the framing of contributions, at least in the first instance, solely to nations. This, given the overlapping interests of states in protecting autonomy, was a predictable and inevitable outcome.Footnote ²⁷ Indeed, Singapore argues that the term ‘nationally determined’ excludes any possibility that the contributions could be ‘internationally negotiated or multilaterally imposed’.Footnote ²⁸ There is, however, an effort in the negotiations for the 2015 agreement to craft a hybrid approach where the ‘top-down’ meets the ‘bottom-up’.Footnote ²⁹

There are at least two ‘top-down’ elements to the 2015 agreement under consideration in relation to countries' GHG contributions: informational requirements that accompany their contributions so as to enhance their clarity, transparency and understanding; and, an assessment/consultation/evaluation process (although the extent to which this will function in a ‘top-down’ or prescriptive manner is hotly contested) to review countries' GHG contributions.

The Warsaw ADP decision, in the paragraph excerpted above, merely mandated the ADP to develop informational requirements for Parties' contributions.Footnote ³⁰ It neither provided any guidance on the type of information required from Parties nor posited any specific purpose to be served by this information. The previous paragraph of the decision inviting Parties to initiate/intensify domestic preparations for contributions required Parties to communicate these in a manner that facilitates ‘clarity, transparency and understanding’ but this is an invitation to Parties not a direction to the ADP in arriving at informational requirements to be placed on Parties. Many countries, across the developed–developing divide, argued in Warsaw for clear informational requirements to be laid out in relation to Parties' commitments.Footnote ³¹ Several Parties had in their submissions identified both the type of ex ante or upfront information to accompany mitigation commitments and the rationale for requiring such information. Suggestions for information to be provided by Parties included: target year and/or target period, sectors covered, gases covered, metrics used to calculate equivalence of greenhouse gases, expected contribution (if any) of international market based mechanisms,Footnote ³² assumptions underlying any parameters used for defining the mitigation commitment, accounting for the land sector, reasons for any deviation in accounting from IPCC sectors and gases, etc,Footnote ³³ relevant domestic laws and policies.Footnote ³⁴ A few Parties proposed templates for the submission of information by Parties.Footnote ³⁵ Some Parties also lobbied for a process to develop accounting rules for the land use sector and the use of market mechanismsFootnote ³⁶ At Warsaw, however, the negotiating dynamics did not permit Parties to reach this level of detail. The Like-Minded Developing Countries (LMDCs),Footnote ³⁷ a recently formed coalition comprising, among others, China and India (but notably neither Brazil nor South Africa), resisted provision of such detailed information and argued that informational requirements as well as rules, if any, should be differentially applied to developed and developing countries.Footnote ³⁸ Since differential application in the post-2020 period is anathema to the Umbrella Group, comprising Australia, Canada, Japan, Kazakhstan, New Zealand, Norway, Russia, Ukraine, and the US, these countries along with the majority of other developed countries brought the discussion to a halt.

On the related issue of the purposes to be served by this information, there is a range of views. The European Union (EU) believes such information is necessary to ensure that the commitments adhere to the criteria of ‘transparency, quantification, comparability, verifiability and ambition’.Footnote ³⁹ The Umbrella Group notes that the information elicited must ensure that the contributions are ‘clear, transparent and quantifiable’.Footnote ⁴⁰ The US notes that the ‘clarifying information’ is to be provided to ensure that Parties understand each other's commitments—‘both to be able to analyze them in relation to their own commitments and to be able to look at the aggregate effort being put forward’.Footnote ⁴¹ The primary purpose of such information, in their view, is clarity. South Africa believes such information to be essential in assessing ‘the adequacy of the aggregate effort and the fair distribution of relative efforts.’Footnote ⁴² The Africa Group's proposal for a principle-based reference framework is premised on information provided by Parties, and it is designed in its application to national contributions to address both considerations of adequacy (so as to reach the below 2 °C temperature goal) and equity (so as to ensure fair burden sharing).Footnote ⁴³ The Africa Group's proposal for a principle-based reference framework, however, drew strong criticism from the LMDCs. In addition to their opposition to the prescription of detailed informational requirements and rules, the LMDCs opposed a multilateral assessment process for fear that in a regime ‘applicable to all’Footnote ⁴⁴ such a process will apply to their national contributions.

The Warsaw ADP decision therefore contained only the flimsiest of hooks for an assessment process. The decision invited Parties to initiate or intensify their preparations for their ‘intended nationally-determined contributions’.Footnote ⁴⁵ The use of the word ‘intended’ suggests that this contribution is provisional in that it may not be a Party's eventual contribution inscribed in the 2015 agreement. This creates two possibilities—that the intended contribution could be revised by the Party itself, or as a result of a multilateral assessment process. Some Parties have a clear preference for the former, as they do not envision a determinative role for a multilateral assessment process, if any.Footnote ⁴⁶ In their view a multilateral assessment process, or a ‘consultative process’, as the US characterizes it, is intended to facilitate clarity and understanding of each other's commitments, and any decision to revise commitments upwards will ‘ultimately be their [a Party's] choice’.Footnote ⁴⁷ Others consider a multilateral assessment process, and one with a determinative role, as critical to any future international climate change agreement.Footnote ⁴⁸ The Africa Group's proposal for a principle-based reference framework is premised on the creation of a multilateral assessment process that has a determinative role.Footnote ⁴⁹ Indeed, it could be argued that a rigorous multilateral assessment process, such as the one proposed by the Africa Group, the Independent Association of Latin American and the Caribbean (AILAC)Footnote ⁵⁰ and the EUFootnote ⁵¹ would provide a raison d’être for the international regime. Together these two elements— nationally determined contributions, accompanied by the required information, and a multilateral assessment/consultative/evaluation process applied to them—form the core of the ‘hybrid approach’ that is gaining ground as a likely architectural format for the 2015 agreement.

The nature of this assessment process, whether it will apply before 2015, after 2015, or at regular intervals; what critical mass of countries (and/or emissions coverage) will trigger the assessment process;Footnote ⁵² whether the assessment process will lead to a revisit of commitments; and, whether such a revisit will lead to a COP-mandated or requested revision of a Party's commitment or a self-correction by the Party concerned, are open questions that Parties will need to address. It is worth highlighting, however, that the timeline chosen by Parties at Warsaw for contributions to be submitted—well in advance of COP-21, Paris, 2015, and by the first quarter of 2015 by those Parties ready to do so—effectively deflects the application of an assessment process to national contributions before 2015. Despite the fact that the UN Secretary-General has scheduled a high-level event in the fall of 2014,Footnote ⁵³ most contributions are only likely to be forthcoming in 2015. This is particularly so for developing country contributions as several developing countries are arguing that the elements of the 2015 agreement, in particular support arrangements, need to be fleshed out before they can define their contributions.Footnote ⁵⁴ If contributions are only forthcoming in 2015, it is unlikely, given the paucity of time that a robust assessment even if an assessment process is agreed and adopted,Footnote ⁵⁵ could be conducted and contributions revisited before the Paris conference. This could have the following consequence. Nationally determined contributions, at least by 2015, will likely be purely ‘bottom-up’ contributions, unprocessed internationally. This will lead to a justifiable reluctance to enshrine these contributions in a legally binding instrument. Some Parties, in any case, have indicated a preference for contributions to be ‘housed’ outside the legally binding agreement.Footnote ⁵⁶ Delay in the submission of contributions will create a strong pull towards this option and/or to shifting some part of or the whole assessment process to after 2015. In such a case the contributions could be ‘housed’ outside the legally binding agreement until the completion of the assessment process, and then options for including it in the agreement could be explored.

V. THE INTERPLAY BETWEEN DIFFERENTIATION AND ARCHITECTURE

Parties need to perceive themselves as being treated fairly if they are to accept and comply with an international agreement. Yet, the issues of equity and differentiation have proven to be deeply contentious in the climate change negotiations. There is a range of views among Parties on equity and differentiation—from strict differentiation in line with the FCCC Annexes at one end of the spectrum to self-differentiation through self-selection effectively bypassing the Annexes at the other end of the spectrum. The LMDCs,Footnote ⁵⁷ at one end of the spectrum, advocate the following approach to equity and differentiation. The principles, provisions and structure (Annexes) of the FCCC are sacrosanct, and must not be reinterpreted, renegotiated or rewritten. These principles and provisions are premised on historical responsibility, respective capabilities and development imperatives. Thus these principles and provisions require leadership from developed countries and differentiation in central obligations (targets and timetables) in favour of developing countries. Such a balance of responsibilities between developed/Annex I and developing/non-Annex I countries must be reflected in the 2015 agreement. This approach to differentiation maps on to a prescriptive or ‘top-down’ architecture for the 2015 agreement in that commitments, including those that operationalize equity and differentiation, are negotiated and agreed rather than self-selected.

The Umbrella Group,Footnote ⁵⁸ the Environmental Integrity GroupFootnote ⁵⁹ and SingaporeFootnote ⁶⁰ at the other end of the spectrum of views, advocate the following approach. They propose that nationally determined mitigation actions, taking into account national circumstances, form the building blocks of the 2015 mitigation agreement. In their view, self-selection of mitigation commitments results in self-differentiation.Footnote ⁶¹ In recognizing and privileging differentiation for all Parties (rather than just in favour of developing countries) this approach effectively bypasses (and renders irrelevant) the FCCC Annexes. This approach sits squarely within the bottom-up architectural approach in that nationally determined mitigation contributions or commitments—while they may be subject to a reviewFootnote ⁶² or evaluation and reviewFootnote ⁶³ or consultativeFootnote ⁶⁴ phase—are not ultimately subject to international negotiation, benchmarking or adjustment. Countries may voluntarilyFootnote ⁶⁵ and unilaterallyFootnote ⁶⁶ revise their mitigation offers but this will ultimately be their choice.Footnote ⁶⁷ The review or assessment phase in this approach is focused on ‘adequacy’ and fairness in terms of responsiveness in changes to countries' circumstances and capacities over time not on equity as interpreted by many developing countries. In this approach equity is conflated with self-differentiation.

In the middle of the spectrum are views by the EU,Footnote ⁶⁸ and the AILAC.Footnote ⁶⁹ In their view all Parties are required to take on ambitious mitigation commitments that will be differentiated based on the principles of the Convention applied in a ‘dynamic’ way. All Parties must participate in time in accordance with their evolving responsibilities and capabilities,Footnote ⁷⁰ and changing national circumstances.Footnote ⁷¹ The Annexes are, implicitly, bypassed. This will result in a spectrum of commitments across countries varying in type, depth, and stringency, but not in legal form or nature of commitments, which will be identical for all. This approach seeks to combine the top-down and bottom-up architectural approaches in that it combines self-selection of commitments with a robust international assessment/adjustmentFootnote ⁷² or reviewFootnote ⁷³ process that is expected to lead to increased ambition. However, the assessment/adjustment/review process focuses on ensuring ‘adequacy’ or effectiveness in relation to the below 2 °C temperature goal but not in assessing compatibility with particular equity considerations.

A more equity-friendly approach in the middle of the spectrum is the Africa Group approach. In the Africa Group's vision the FCCC Annexes are used nominally to assign broad categories of commitments/actions to Parties'—economy-wide emissions reductions for Annex I countries, and mitigation actions that support a deviation from business as usual for non-Annex I countries. All countries have legally binding commitments, undertaken in accordance with their national circumstances and common but differentiated responsibilities and respective capabilities. However, in so far as Parties self-select their commitments and actions, in accordance with the broad parameters of the Annexes, there is self-differentiation with respect to the specific commitments selected by Parties. The commitments by Parties are, however, subject to a ‘principle-based reference framework’ referred to earlier.Footnote ⁷⁴ Parties' self-selected commitments are assessed for adequacy and fairness against this reference framework. This approach to equity and differentiation seeks to reconcile top-down and bottom-up architectural approaches to the 2015 agreement, in that it combines self-selected or nationally determined commitments with an international process for assessment, review and possible ratchet. This approach is prescriptive to the extent that it relies on metrics, criteria and/or indicators to assess equity, fairness and adequacy.

The issue of differentiation thus assumes particular relevance in the context of the ‘top-down’/‘bottom-up’ architectural discussion. The ‘top-down’ approach is closely identified with the Kyoto Protocol. The Kyoto Protocol captures a ‘top-down’ approach in that GHG targets are prescribed in the international agreement (albeit once offered and negotiated by the countries concerned), as well as a strong form of differentiation in favour of developing countries, in that GHG targets and timetables are only for developed countries.Footnote ⁷⁵ The ‘bottom-up’ approach is closely identified with the Copenhagen Accord, 2009, and Cancun Agreements, 2010. These instruments capture the ‘bottom-up’ approach discussed above, but also ‘differentiation++’, in that by deferring to national circumstances and permitting every nation to chart its own course and choose its own commitment or action, they recognize differentiation in favour of all countries (not just in favour of developing countries). ‘Top-down’ or prescriptive approaches are therefore conflated with strong forms of differentiation in favour of developing countries and ‘bottom-up’ or facilitative approaches with differentiation in favour of all countries through self-differentiation.

This interplay between the emerging architecture of the 2015 agreement and differentiation poses difficulties for some negotiating interests and coalitions. The LMDCs in particular find themselves in a bind. They espouse strong forms of differentiation in favour of developing countries, which suggests that they would advocate a ‘top-down’ or prescriptive approach in the 2015 negotiations. However, since the 2015 agreement will be ‘applicable to all’Footnote ⁷⁶ the prescriptive approach, should one be adopted, would apply to developing countries as well.Footnote ⁷⁷ This is problematic for them. Thus they advocate strong forms of differentiation in favour of developing countries yet endorse the ‘bottom-up’ approach that preserves their autonomy and discretion. This tension in the LMDCs' negotiating position explains their rejection, for instance, of the Africa Group's proposal for a principle-based reference framework.Footnote ⁷⁸ A principle-based reference framework, however favourable the indicators used to assess countries' fair shares, will involve a top-down multilateral assessment, which this group rejects. Assuming the agreement will truly be ‘applicable to all’, one (strong form of differentiation in favour of developing countries) or the other (the ‘bottom-up’ approach) will give. And, it is likely to be the former, given the overwhelming tide across developed and developing countries towards using the ‘bottom-up’ approach as the starting point of the 2015 agreement.

As the 2015 agreement must be both equitable and effective for it to be broadly acceptable, Parties will need to determine how the ‘top-down’ might meet the ‘bottom-up’ to ensure the survival of some more prescriptive forms of differentiation in favour of developing countries. In particular Parties will need to determine how ‘equity’ can be mainstreamed into the climate regime as it evolves. The differentiation++ approach that respects self-differentiation by all countries subscribes to a certain vision of fairness—a vision that recognizes and respects diverse national circumstances, capabilities and constraints. This approach does not however address a vision of equity, held by many developing countries, that takes into account historical responsibility of developed countries and legitimate development needs and priorities of developing countries. If these are to be addressed they will need to be built into the top-down elements of the 2015 agreement. Both informational requirements as well as the assessment process, should one come to pass, could incorporate equity dimensions which would influence the extent of self-differentiation Parties permit themselves and that is recognized as legitimate. Parties could be asked to provide information, including objective criteria, justifying the fairness or equity of their contributions. Further, the assessment process could incorporate an evaluation, based on objective indicators relating inter alia to historical responsibility and development needs, of countries' fair or equitable shares.Footnote ⁷⁹ Needless to say, ‘objective indicators’ could be subjectively selected to reach differing and preferred conclusions, hence the objective indicators must be multilaterally chosen to ensure a fair and acceptable result.

VI. THE NATURE AND SCOPE OF NATIONALLY DETERMINED CONTRIBUTIONS

The centrepiece of the 2015 agreement, and indeed the Warsaw decision, is the ‘nationally determined contributions’ that Parties are expected to submit. The term ‘contributions,’ however, raises more questions than it answers. The term leaves the nature of contributions open. The Copenhagen Accord, 2009 and Cancun Agreements, 2010 required developed countries to take ‘commitments’ and developing countries to take actions.Footnote ⁸⁰ At Warsaw, Parties had in open-ended consultations held before the final plenary agreed to the term ‘commitments’ in relation to all Parties. However, when the draft decision was taken up in the final plenary meeting of the ADP, the BASIC countries objected to the term commitments arguing that unless ‘commitments’ were firmly ensconced in the context of FCCC Article 4, they could not accept it. FCCC Article 4 contains general commitments for all, and specific commitments for developed countries including in relation to mitigation, finance and technology. The US, among others, opposed such a general reference to Article 4 as it would introduce an element of uncertainty, given the breadth of Article 4, to the commitments of Parties.Footnote ⁸¹ As no agreement could be reached on including a reference to Article 4, the final huddle substituted the term ‘commitments’ with the term ‘contributions’. The term contributions, therefore, could crystallize in the 2015 agreement into commitments for all Parties, as some countries argue it should,Footnote ⁸² or into commitments for some and actions for others, as other countries argue it should.Footnote ⁸³ The nature of nationally determined contributions is also unclear in another respect. It is unclear whether nationally determined contributions, whatever form they take, can be conditional. There is a divergence of views on this. Several developed countries believe these contributions should be unconditional, and based on what countries can commit to with their own resources.Footnote ⁸⁴ Nationally determined, in Switzerland's words, suggests ‘nationally owned’.Footnote ⁸⁵ However, several developing countries are of the view that national contributions of developing countries, given the context of the Convention, will be conditional on the provision of adequate support.Footnote ⁸⁶ If national contributions can be interpreted to be conditional in this way, aggregation of national efforts in order to determine conformity with particular mitigation pathways, and to assess the likelihood of achieving the chosen temperature goal will be difficult. This is yet another issue that waits further negotiation.

The term ‘contributions’ also leaves the scope of the contributions open. Since the term ‘contributions’ is not qualified by ‘mitigation’, contributions could take the form of adaptation, finance, technology transfer or capacity building contributions. Many developing countries favour this all-inclusive approach to contributions. This could in theory imply that Parties could offer adaptation contributions in lieu of mitigation under the 2015 agreement. The US, Japan and Canada argue that the context of the discussions thus far suggests that contributions refers to mitigation contributions. Among others, such as Switzerland, they believe that all countries must commit to nationally determined mitigation contributions, and that adaptation contributions cannot be offered in lieu of mitigation contributions. The US also argues that contributions to the 2015 agreement do not include financial contributions. The scope of nationally determined contributions will need to be determined soon as informational needs relating to different types of contributions and therefore informational requirements relating to different types of contributions will vary, and will need to be fleshed out accordingly.

Beyond the fundamental issues of nature and scope of the nationally determined contributions lie a range of further issues that Parties will need to discuss and agree to by 2015. Parties will need to agree on a process for communicating and inscribing contributions. They will need to identify information requirements for particular types of contributions, determine rules for accounting of contributions, and find a place to anchor or house them. Perhaps most importantly, Parties will need to determine what legal nature nationally determined contributions will assume.

VII. LEGAL FORM AND NATURE

The Warsaw decision leaves the legal form of the 2015 agreement and, explicitly, the legal nature of nationally determined contributions unresolved.Footnote ⁸⁷ Indeed, the clause ‘without prejudice to the legal nature of the contributions’ occurs three timesFootnote ⁸⁸—twice in one paragraphFootnote ⁸⁹—and was a product of the final huddle at Warsaw. These caveats suggest not just that the legal nature of the nationally determined contributions is unresolved, but also that the information Parties communicate or the manner of communicating it should not prejudge the legal nature of the contributions.

The Durban Platform decision, in the absence of agreement on the legal form of the outcome, agreed to launch work towards a ‘protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’.Footnote ⁹⁰ Given the substantive contents and contours of the 2015 agreement are still to be determined, Parties did not address this issue at Warsaw. Nevertheless, Parties do appear to be negotiating on the operational presumption that the 2015 package will contain a legally binding agreement.Footnote ⁹¹ It is unclear, however: what will be included in the agreement (and what will not); what the legal nature of contributions will be; whether the legal nature of contributions will be the same across different types of contributions (assuming contributions are not limited to mitigation contributions); and, whether the legal nature of contributions will be identical for all Parties or differentiated for developed and developing countries.

There are differing views among Parties on what should be included in the 2015 agreement. In particular, there is a divergence on whether national contributions should be contained in the 2015 agreement or not. There are several possibilities. National contributions could be inscribed in the 2015 agreement, as for instance in an Annex, Appendix, Attachment or Schedules. The EU,Footnote ⁹² AustraliaFootnote ⁹³ and China,Footnote ⁹⁴ among others, subscribe to this view. South Africa suggests the inscription of commitments in schedules to the 2015 agreement, but only by 2017.Footnote ⁹⁵ National contributions could also be located elsewhere in documents (such as COP decisions,Footnote ⁹⁶ information,Footnote ⁹⁷ miscellaneous or other documents) or be held by the FCCC Secretariat.Footnote ⁹⁸ Inscription in these cases could occur at any time—before, in or after 2015. Contributions could also be readily updated or changed than if these were inscribed in a legally binding agreement. The US notes that schedules containing contributions should be ‘housed separately (for example, by the Secretariat), both because this will facilitate updating over time and because national schedules are not “approved” by other Parties in the same sense as either provisions of the agreement or decisions of the Parties'.Footnote ⁹⁹ In a similar vein, New Zealand suggests national schedules containing contributions that are ‘supplementary’ to the legally binding instrument.Footnote ¹⁰⁰ If contributions are housed elsewhere, their relationship to the 2015 agreement, if any, will need to be defined. Switzerland proposes that Parties' commitments for the period from 2020 are to be ‘anchored under the 2015 agreement’.Footnote ¹⁰¹ Anchoring could take within its fold provisions in the 2015 agreement that commit countries to or otherwise refer to contributions.

The legal nature of nationally determined contributions will depend on where they are located, and how they are anchored in the 2015 agreement. If they are inscribed in an Annex/Appendix/Attachment to the 2015 agreement, they will be an integral part of the 2015 agreement, as Annexes are,Footnote ¹⁰² and if the 2015 agreement is legally binding, they will also be legally binding. If they are housed elsewhere, however, the contents of the ‘anchoring’ provision in the 2015 agreement that links these contributions to the agreement will determine the relationship of the 2015 agreement to national contributions. The anchoring provision could merely take note of the contributions, as the Cancun Agreements did of the targets and actions of developed and developing countries respectively. However, this would not be in keeping with the letter and the spirit of the Durban Platform decision. The anchoring provision could commit all Parties to finalizing contributions ie to translating intended contributions into commitments. The provision could go further and commit Parties to achieving their nationally determined contributions or commitments. It could commit Parties not to lower the level of ambition reflected in their contributions. The provision could also require Parties to demonstrate that their contributions or commitments have legal force in domestic law. The precise contours of the anchoring provision will therefore influence the nature and status of Parties' contributions. An anchoring provision alone, however, cannot render these contributions legally binding internationally—as the contributions here would not be housed in a negotiated legal instrument; indeed it is unclear that the nationally determined contributions would be internationally negotiated at all. Should the anchoring provision request Parties to ensure that these contributions are imbued with legal force domestically, however, these contributions, could form part of an ‘agreed outcome with legal force’ as required by the Durban Platform decision.Footnote ¹⁰³

This picture is further complicated by the fact that several developing countries are arguing not just that contributions can take different forms, and that developed countries must present financial contributions, but also that all contributions must have the same legal nature.Footnote ¹⁰⁴ Thus, if mitigation contributions of developing countries are to be legally binding so must financial contributions from developed countries. As developed countries are unlikely to accept legally binding financial contributions, this position will create a pull towards housing the contributions outside a legally binding 2015 agreement. It is also worth noting the long-standing arguments of some developing countries that the legal nature of contributions should be different for developed and developing countries—voluntary for developing countries and binding for developed countries.Footnote ¹⁰⁵ While this position has not been asserted forcefully in recent times, given that the legal nature of contributions is completely open, it could resurface at any time.