Posted by: Frances Lawson
Given the fragility of the legal architecture for tackling international climate change, there is no such thing as an ‘unimportant’ meeting in this arena. Yet the 23rd Conference of the Parties to the United Nations Framework Convention on Climate Change (‘UNFCCC’) is shaping up to be a meeting of particular significance in determining the form and character that the Paris Agreement will take in effect, as opposed to in text.
COP23 will be held in Bonn, Germany, between 6th and 17th November 2017. Although Germany is the physical host of the meeting, it is being organised and chaired by the Government of Fiji. One thing to be expected, therefore, is that the predicament and perspective of small island states will have particular prominence. Perhaps deservedly so. In his inaugural speech to the 72nd session of the United Nations General Assembly, the incoming Fijian President of COP23 expressed his sympathy for the Caribbean and American victims of Hurricane Irma, whilst pointing out that his own country lost forty-four citizens and one third of its GDP in the largest cyclone ever to reach land last year. In contrast to hurricane Irma, this Fijian tragedy registered little more than a tremor in the international media, making it all the more timely, and arguably deserved, for this COP to shine the spotlight on the neglected small-island states far removed from western consciousness.
The incoming President’s speech also drew attention to possibly the largest of many sizeable bones of contention that delegates will be chewing on at COP23. By highlighting the need for ‘collective action’ in the international climate change regime, and calling for an end to the pursuit of ‘narrow national interests’, the incoming President was undoubtedly making reference to the justifications given by President Trump for his declaration of intent to pull the US out of the Paris Agreement. As the President very eloquently stated:
“It is clear … that global warming changes our very understanding of what our national interests are. It challenges us to understand that the only way for every nation to put itself first is to lock arms with all other nations and go forward together. Anything else is self-destructive—for the world and for each nation. It may be tempting for political leaders to show that they are protecting some national industry or near-term economic goal, but at what cost? The wise leader must work hard to convince the people to embrace the path we know we must take.” (1)
The Trump question is likely to occupy considerable negotiating time at COP23 because divisions have started to appear in Parties’ attitude to the US position. Less than two weeks’ ago, the EU’s Commissioner for Climate Action created controversy by suggesting that the US could “modify” its commitments under the Paris Agreement and “chart its own path”, rather than being bound to the collective action therein. This suggestion has been widely rounded upon by many developing country parties who have said that allowing the US to remain a party whilst diluting its commitments and changing the terms of its engagement would open the door to “backsliding” and could enable other parties to follow suit, thus undermining the integrity of the whole Paris Accord.
This controversy highlights a very interesting legal question – do the terms of the Paris Agreement allow for a party to revise downward the level of its commitment thereto?
The United States ratified the Paris Agreement on 3rd September, and the Agreement entered into force in the US on 4th November 2016. The US therefore has the status in law of a Party to the Agreement. The Agreement as a whole entered into force on the same date in November 2016.
Article 3 of the Agreement states as follows:
“As nationally determined contributions to the global response to climate change, all Parties are to undertake and communicate ambitious efforts as defined in Articles 4, 7, 9, 10, 11 and 13 with the view to achieving the purpose of this Agreement as set out in Article 2. The efforts of all Parties will represent a progression over time, while recognizing the need to support developing country Parties for the effective implementation of this Agreement”.
Articles 4(2) and 4(3) provide that:
“Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.”
“Each Party’s successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstance.”
What is striking from these provisions is that Parties are obliged under the Agreement to maintain a Nationally Determined Contribution (NDC) at all times, and for its level of greenhouse gas emissions reduction ambition expressed therein to increase in ambition over time and with each successive NDC. This is the “no backsliding” provision that was so hotly debated in the lead-up to COP21 in Paris. Whereas much of the Agreement’s language can fairly be described as “woolly”, this is not a criticism that can be fairly leveled at this obligation in Articles 3 and 4 above. One only has to consider the way the obligations are expressed to see that they are intended to be binding legal obligations: “the Parties are…”, “all Parties shall …”, each Party’s NDC will…”. Whatever else Parties in Paris did not agree on, there was consensus that all states should have an ambitious NDC, and that everyone’s NDC should increase in its ambition over time. This obligation, therefore, goes to the very heart of the treaty.
Unsurprisingly, given the above, there is no provision for Parties to withdraw a submitted NDC. Nor is there any provision for Parties to amend a submitted NDC so as to dilute the ambition of the commitments therein.
It is therefore apparent that Canete’s proposal to allow Trump and the US Administration to do precisely that with the submitted US NDC runs counter to the binding obligations expressed in Articles 3 and 4, would therefore be a breach of the terms of the Agreement, and therefore unlawful.
Whether such a legal analysis will flow through into Parties’ approach to discussions about ‘Trumpgate’ in Bonn next month remains to be seen. What is clear is that if the US is allow to “backslide” in this way, the integrity, both legally and politically, of the Paris Agreement will be seriously, perhaps irreparably, damaged.
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