Widening participation and legal efficacy under the UNFCCC

Posted by: Frances Lawson

Since 1992, the legal climate change regime under the UNFCCC has had a straightforward, but narrow, structure – national governments are the sole Parties to the Convention, all legal obligations are placed upon them, all actions are to be taken by them, and the benefits – such as finance and other forms of support – are available to them, and them alone. The idea implicit in this structure is that States then pass on obligations, actions and support systems to non-state actors; businesses, local/regional government and NGOs.

Now, however, that structure is undergoing a radical change. Non-state actors, no longer satisfied with being kept on the fringe of the international climate change regime, have started to demand a more formal role, to have their contributions and their support needs recognised and covered by the legal regime. Encouraged by the French Presidency of the COP21, hundreds of such non-State actors have converged this week in Lyon for the first World Summit on Climate and Territories (WSCT) to draw up their priority wish list for the Paris Agreement. A platform – NAZCA – has been created on the UNFCCC website to enable non-state actors to submit their contributions and to have them evaluated.

From a climate change perspective, this is a welcome expansion of effort, action and engagement. Tackling climate change successfully requires the involvement of as many actors at different levels as possible, and indeed of us all as citizens. It is perhaps unrealistic, idealistic, to expect States to deliver fully on mobilising regional, sub-regional and local action. Indeed, it presupposes that States know best how to go about doing so when in fact, creativity and innovation often grow from the ground, independent of central government.

From a legal angle, however, the widening of participation in the climate change regime is not without difficulty. To be effective in a legal sense, the climate change regime needs to be robust and reliable. We need to know that the obligations on emissions reductions are being met. We need to be able to monitor, evaluate Parties’ progress in meeting their obligations. We need to have confidence that the figures, the data on emissions reductions are accurate. Otherwise, the very purpose of the legal regime – protecting the climate from dangerous anthropogenic climate change – is unlikely to be fulfilled. Compliance action to uphold those legal obligations also becomes impossible to take.

Many non-state actors are now calling for official recognition of their greenhouse gas emissions reductions, but systems do not yet exist to avoid the risk of these being double-counted with those reported by the relevant national government. Indeed, the system of monitoring, reporting and verification (MRV) to be used by Parties remains a major issue yet to be resolved ahead of Paris. Currently, different parties measure different greenhouse gases and have their own specific ways of calculating those emissions. Adding into the equation reductions proclaimed by non-state actors, and an already complex situation becomes impossibly difficult. And in legal terms, utterly unworkable.

The World Summit is therefore a major step forward in expanding involvement in the climate change effort in a way that will benefit and enhance the action being taken on the ground. Legally speaking, there is little issue with the Paris Agreement allowing non-state actors to access support for climate change initiatives, nor with having their efforts acknowledged and appreciated in a general sense. However, until Parties can agree on an effective, robust MRV system for national greenhouse gases under the UNFCCC, formally taking account of non-state actor emissions reductions risks seriously undermining the very regime that those efforts are meant to support.

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