Key features of and the occasional surprise in the Paris Agreement (Part One)

February 9, 2016

Posted by: Frances Lawson

The text finally agreed in Paris does not lend itself to easy navigation or digestion; the absence of sub-headings makes it necessary to dive into each paragraph in detail in order to understand the subject matter. This article will summarise the first set of key provisions and points of interest for legal practitioners.

The text itself is comprised of two parts; the first is the actual Paris Agreement, the legal text, albeit its legal character remains the subject of contention; the second is the Decision of the Conference of the Parties (COP Decision). This sets out the mechanics of the Agreement and also defines the actions that the Parties are encouraged to ‘bridge the commitment gap’ to 2020 when the Paris Agreement takes effect.

The Agreement

Article 2

Article 2 is the first provision of significance. It can be loosely defined as providing the aim or purpose of the Agreement, which is how it was labelled prior to the removal of sub-headings at the COP. Article 2 contains three key elements.

First, it confirms that the Paris Agreement is under the United Nations Framework Convention on Climate Change (UNFCCC), and its aim is to enhance “the implementation of the Convention”. A key ask of many developing countries, the situating of the new Agreement under the existing legal architecture has both a positive and negative dimension. The positive aspect is that it avoids unnecessary duplication by building on the institutions and efforts of the past 22 years rather than creating something separate that needs to be constructed from scratch. The downside is that the problematic parts of the Convention that stall more rapid global action on climate change also govern the Paris Agreement.

More eye-catchingly, Article 2 contains the much-talked of global temperature goal. Rather than setting a bold intention to limit warming to 1.5 degrees, as some Parties wished given the scientific warnings of the effects of a 2 degree temperature rise, the wording reflects a compromise – the aim being to hold the increase in global average temperature to “well below” 2 degrees above pre-industrial levels, and to pursue efforts to limit the temperature increase to 1.5 degrees. Where on the spectrum between 2 degrees and 1.5 degrees lies a temperature increase “well below” 2 degrees is one of the topics of debate that has arisen post-COP. The short answer is that no-one knows, and this is one example of the vagueness built-in to the Agreement which is one of its major shortcomings.

In order to appease the G77 and China group, Article 2 also includes a bullet point stating that the Agreement “will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances”. This principle, as discussed in previous posts, is the primary way in which developing country commitments are watered down by providing a “get-out clause” which enables them to assert their “particular national circumstances” as the justification for not taking the actions required.

Article 3

This is one of the most interesting provisions of all, and potentially the most exciting. The purpose of the Article is to define the nub of what Parties are committed to do under the Agreement. It reads 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 a 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”.

Article 3 therefore provides two points of interest; first, it makes clear that Parties’ efforts to combat climate change will be called “Nationally Determined Contributions” – contributions being preferred to “commitments” which denoted a level of “binding force” that certain Parties were not comfortable with. More interestingly, and in surprisingly robust language, Article 3 then goes on to state that Parties have an obligation to produce an NDC covering mitigation (Art 4), adaptation (Art 7), finance (Art 9), technology development and transfer (Art 10), capacity building (Art 11), and transparency (Art 13), and to make “ambitious efforts” under each of those headings. Each NDC must represent a scaling-up of the level of action relative to the previous version – what was termed the “no backsliding principle” in the negotiations. The use of the phrase “Parties are to undertake and communicate” is particularly significant as it denotes a clear, legally enforceable obligation of the kind that has been a rarity in climate change law.

Some commentators have contended that the only binding obligation on States under the Paris Agreement is the obligation to produce and maintain an NDC. A careful reading of Article 3 indicates the obligation to extend some way beyond this – rather than simply a procedural requirement, Parties have an obligation of result. Through the vehicle of their NDC, they are required to make ambitious efforts towards meeting the global temperature goal in Article 2. Those ambitious actions must be in the areas of mitigation, adaptation, finance, technology transfer, capacity building and transparency. This is a far more robust and wide-ranging obligation than was expected, and is the most positive and unexpected surprise in the text.

Article 4

Article 4 sets out in detail the actions that Parties are to take in the area of mitigation. Disappointingly, it states that Parties “aim” to reach a global peaking of GHG emissions “as soon as possible”, rather than setting a deadline for emissions to peak by 2050 as had been hoped for by some Parties. In practice, the “possible” in “as soon as possible” is likely to mean “as soon as possible whilst increasing or maintaining GDP growth”. As to be expected, developing countries have longer in which for their emissions to peak, and are to make rapid reductions thereafter. This reveals a major flaw in the whole ideology underpinning the Agreement; rather than setting developing countries, particularly the Least Developed Countries, onto a low, or zero carbon development trajectory from the outset, the Agreement tacitly allows countries to pursue a high-emissions development pathway, as China has done, and then to switch to reverse gear and seek to undo the damaging climatic effects of that pathway. The latter is both harder to do, as China’s example demonstrates, and involves significantly higher amounts of carbon entering the atmosphere.

The other disappointing feature of Article 4 is that, unlike in previous versions of the text that included an option to aspire to “zero emissions” in the second half of this century, the long-term mitigation aim has been scaled back to one that strives for “a balance between anthropogenic emissions by sources and removals by sinks of GHGs” in the second half of century. A balance between emissions in and out is not the same as “zero emissions”, and this represents a weakening in the ambition level of the final agreement.

Article 4(2) provides greater detail of the nature of Parties’ mitigation commitments:

“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”.

The language used is a mixed blessing – whilst “shall” creates a clear obligation on each Party, previous versions of the text had provided for an additional obligation to “implement” the NDC. The limiting of the obligation to preparing, communicating and maintaining is disappointing, although it is perhaps of limited significance thanks to the Article 3 obligation on Parties to take mitigation and other climate action, which is arguably is akin to an obligation to implement the proposed actions in an NDC.

Article 4(3) reiterates the “ambition” and “no-backsliding” principle by stating that “each party’s successive NDC will represent a progression” beyond the Party’s then current NDC … “and reflect its highest possible ambition” taking account, of course, of the principle of common but differentiated responsibilities and respective capabilities in light of different national circumstances.

Article 4(4) repeats the CBDR principle by stating that developed countries must take the lead by undertaking economy-wide absolute emission reduction targets. Developing countries should continue enhancing their mitigation efforts, and are “encouraged” to move “over time” towards economy-wide emission reduction or limitation targets. In other words, and in-line with the Sustainable Development Goals, the priority for developing country parties is to develop economically, and only then to start reducing overall emissions. Whilst this is understandable for the poorest developed countries, including the least developed countries, the imperative is that all such countries develop in a low-emissions way. An approach akin to that of China over the past two decades will almost certainly remove any hope of the global temperature goal being met. The only reference to the need for an alternative approach to development is found in Article 4(19) which states that Parties “should” strive to formulate and communicate long-term low GHG development strategies. With no deadline for this to be done, and no statement that the provision of finance, capacity building and other support will all be tied to the pursuit of a low-GHG development pathway, Article 4(19) is unlikely to drive the level of change required.

Article 4(9) stipulates that NDCs “shall” be communicated every 5 years and stored in a public registry maintained by UNFCCC secretariat, whilst Article 4(13) provides that Parties shall account for the targets and pledges in their NDCs, avoiding double counting and ensuring completeness, transparency, comparability, consistency and environmental integrity. Over twenty years since the UNFCCC came into effect, the lack of agreed accounting rules to ensure that emissions are actually being reduced to the extent that Parties say they are is a fundamental failing of the regime. The success of the Paris Agreement in meeting the temperature goal hinges to a large extent on Parties’ ability in the years ahead to agree a set of coherent, effective accounting rules. Otherwise, emissions reductions that appear impressive in paper will hide the reality of what is actually going into the atmosphere.

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