Posted by: Frances Lawson
With the submission of Parties’ mitigation commitments gathering pace, the obstacles to an effective legal agreement at the 21st Conference of the Parties are becoming ever clearer. Below is the fourth of a selection of the most contentious issues that remain to be resolved if the new agreement is to be credible and effective.
Legal effect and enforceability
International environmental law (‘IEL’) has generally tended to suffer from the problem of the instruments that comprise it lacking legal effect and enforceability. This is why much of the corpus of IEL is termed ‘soft law’ with more in common with policy declarations than binding law.
Despite the incessant rhetoric about the primacy of tackling climate change from world leaders, such is the resistance among many Parties to taking actions deemed contrary to short/medium-term self-interest that the UNFCCC regime has become characterised by a principle of ‘national determination’ which enables Parties to select the terms on which they make commitments thereunder. Whereas under the Kyoto Protocol, Parties were assigned mitigation commitments and bound to comply with them, the position now is that Parties decide for themselves what commitments they are prepared to make, and outline these in a Nationally Determined Contribution (‘NDC’). It is not envisaged that the adequacy of Parties’ contributions will be independently assessed.
Such a ‘bottom-up’ approach to law-making appears to be without precedent in the international arena. It raises an important question of how, even in the more fluid world of international law, an effective, enforceable legal agreement can emerge when the subjects of that agreement are effectively choosing by what they are bound. In particular, it is difficult to envisage how the ultimate objective in Article 2 of the Convention can be fulfilled when the obligations designed to meet it are determined by the Parties themselves according to their own wishes, needs and circumstances rather than imposed from above. By allowing Parties to self-determine how they participate in the global effort to combat climate change, the UNFCCC regime risks becoming a legal instrument in name rather than in substance.
Furthermore, a key facet of an effective legal agreement is enforceability. The Kyoto Protocol’s compliance system was roundly exposed as hollow when Canada opted out of its legally binding commitments and withdrew without impunity in December 2011. Under the proposals for the Paris Agreement, one option is that the Parties will be legally obligated to maintain a mitigation commitment at all times, in the form of an NDC; however, the content thereof will not form part of the legal architecture. There is no prospect at present of Parties being bound by their mitigation commitments in the way that they were under Kyoto. Should a Party therefore fail to meet its mitigation commitments, no legal consequences will follow.
At the World Summit on Climate and Territories in July 2014, Christiana Figueres, the Executive Secretary of the UNFCCC Secretariat, described the international community as being on a “one-way highway without exits” in terms of tackling climate change. Such a highway requires a tightly drafted, legally enforceable outcome in Paris. Nowhere in the current negotiating text is such an outcome in evidence. This is arguably the greatest challenge of all.
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