Posted by: Frances Lawson
As negotiators to the UNFCCC complete their meeting in Bonn ahead of November’s COP 23, Donald Trump and his administration are considering backsliding on US commitments to the Paris Agreement, effectively applying their doctrine of ‘alternative facts’ to the global climate deal.
If implemented, the US move would expose the Agreement’s legal weaknesses by exploiting the absence of binding targets for greenhouse gas (GHG) emissions or any punitive enforcement or oversight of the all-important nationally determined contributions (NDCs) of the Parties.
As this blog has previously covered, Articles 3, 4.2 and 4.3 of Paris provide for a legally binding procedural commitment on Parties to ‘prepare, communicate and maintain’ successive NDCs for five-year periods. Article 4.3 states that the NDCs ‘will represent a progression’ and reflect the Party’s ‘highest possible ambition’ while Article 4.11 authorises a Party ‘at any time’ to adjust its existing NDC ‘with a view to enhancing its level of ambition’.
The words ‘progression’ and ‘ambition’ were assumed by the negotiators to Paris (and by this blog!) to mean successive NDCs could only be ratcheted upward, termed the ‘no backsliding principle’ in the negotiations.
As a candidate, Trump pledged to ‘cancel’ the Paris Agreement. But news reports over the past week have described an on-going legal debate within the Trump administration over whether the US can avoid the legal and diplomatic fall-out involved in a full withdrawal from Paris and simply ratchet the NDC submitted to the UNFCC by the Obama administration downward.
So can the highest ambitions of a Party actually come to mean a reduction in its commitments to progress? Applying Trump’s post-truth policies to Paris’ unprotected syntax and the disturbing but unavoidable answer is, ‘yes’.
Here’s how it works. The US’s current NDC is to reduce its GHG emissions by 26 to 28 percent below 2005 levels by 2025. As this blog has previously noted, even that commitment is significantly behind many other developed country Parties, employing as it does the 2005 baseline rather than the original UNFCCC baseline of 1990, used by the UK and EU among others.
The US, like all Parties to the Paris Agreement, must always have an NDC in place as a legally binding requirement. But the word ‘maintain’ applies to NDCs in general, not to a particular NDC. So an NDC can be changed, exactly as negotiators wished.
That flexibility of ratcheting up NDCs is in fact the only hope Paris has of delivering the GHG reductions required to meet its goal of ‘holding the increase in the global average temperature to well below 2C above pre-industrial levels’. (The sum of all NDCs so far agreed produce GHG emission reductions that the UNFCCC projects will warm the planet by at least 2.7C by the end of the century.)
Most importantly, however, actually meeting the NDC target is not a legally binding commitment on Parties to the Agreement.
Article 3 obligates Parties to ‘undertake and communicate ambitious efforts’ […] ‘with a view to achieving the purposes of this Agreement’. Referring to NDCs, Article 4.2 obligates Parties to ‘pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.’
The precatory wording of ‘with a view to’ and ‘with the aim of’ creates no legally binding obligation. Rather, Parties are legally bound to have their NDCs accounted for through an ‘enhanced transparency framework’ (Article 13.1) that includes assessment by an expert committee that is ‘non-adversarial and non-punitive’ (Article 15.2).
All of which means that the ‘highest ambition’ imperative contained in the Agreement has no legal force and so the Trump administration is free to reduce the level of commitment in the US NDC, as Article 4.3 puts it, ‘in the light of different national circumstances.’
France’s Laurence Tubiana, one of the architects of the Paris Agreement, confirmed the legality of the US NDC backsliding in a tweet: ‘Of course US government CAN legally downsize its contribution but SHOULD Not.’
That position is confirmed by a brief posted by US State Department Deputy Legal Adviser, Susan Biniaz, and Professor Daniel Bodansky, of Arizona State University.
However, the legality of such a move is not entirely uncontested. Jonathan Church, a British lawyer for London-based NGO Client Earth, argues the text of Paris does not allow for downsizing, when read according to the Vienna Convention’s demand that treaties be interpreted ‘in the light of their object and purpose’.
Church makes the point that backsliding is nowhere explicitly permitted, but nor explicitly prohibited, in the Agreement’s text. Instead, he argues, on a ‘true reading’ of Article 4.11, ‘some backsliding can sometimes be permitted’, ‘provided that such adjustments are being made “with a view to” enhancing ambition’, making the analogy to a football team that pass the ball backwards ‘with a view’ to scoring a goal at the other end of the pitch.
A US ‘own goal’, as Church puts it, of downgrading its NDC in order to generate jobs in the coal industry or signal its skepticism over climate change, would, in his analysis, be a breach of the Paris Agreement.
Church may be right that a drastic reduction of America’s NDC by the Trump administration would constitute a breach of treaty for the purposes of Article 31 of the Vienna Convention.
But for a White House already reeling from much graver violations of the rule of law committed in its own jurisdiction, the censure of the international system would likely appear somewhat trifling. Rather, it is perhaps less the legal outcome of a downsizing of the US commitment to Paris that would inflict grave damage on the Agreement as the exposure of the weak legal architecture upon which the Paris Agreement rests.
After all, if the US can force the Paris ratchet to go backwards, it could set a dangerous trend for Parties to do the same, threatening the integrity of the Agreement as a whole.
This piece has been co-authored by Hugh Macleod.
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