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The Paris Climate Agreement: A Historic Breakthrough In Spite of Shortcomings

Monday, 26 December 2016
by Meinhard Doelle, Professor of Law, Associate Dean, Research, Schulich School of Law, Dalhousie University, Halifax, Canada
The Paris Climate Agreement: A Historic Breakthrough In Spite of Shortcomings
Introduction

The Paris Climate Agreement, negotiated in December 2015, came into force on November 4th.  At the time of writing, more than 90 countries have ratified the agreement, and the first meeting of the Parties to the Paris Agreement is about the commence in Marrakech.  The pace of ratifications and of its entry into force are unprecedented in international environmental law.  In this article, I will take the opportunity of its entry into force to reflect on the substance of the Paris Agreement.

Those who have not followed the climate negotiations closely may be forgiven for being surprised that the Paris Agreement[1] is being hailed by many as a success. You will likely be concerned to learn that it accepts inadequate emission reduction targets and financial commitments from many Parties. These commitments collectively get the world to about a 3.5 degree increase in global average temperature, even if fully implemented.  The science is clear that much more is needed to avoid the worst impacts of climate change. What’s more, you may be surprised to learn that these inadequate national commitments are not formally part of the legally binding agreement, and that the compliance system is limited to facilitation.[2]

As I will explore in more detail in this article, the short answer to these concerns is that top down binding commitments and strong enforcement had not been seriously considered in the negotiations for some time. They were never on the table in Paris. Such expectations, while not unreasonable, are based on an approach to global cooperation on climate change that the Kyoto Protocol had shown to be ineffective for practical and political reasons and that had therefore long been abandoned by most negotiators.

For those who have followed the Paris climate negotiations more closely, there will likely be different disappointments. For some, the relegation of gender equity, human rights, intergenerational equity, and climate justice to the preamble of the Paris Agreement may taint the outcome. For others, it will be the exclusion of liability and compensation for loss and damage, the failure to clarify sources of funding and to ensure funding is ramped up before 2020, or the failure to include a robust top down element on mitigation and finance in the 5-year stock taking cycles. Other disappointments might include the failure to explicitly address international shipping and aviation, and the inability of the Parties to agree to a peak year and a decarbonisation year in line with the 1.5 or even 2 degree temperature goals.[3]

My conclusion is that while these are all valid criticism of the Paris Climate Agreement, it is nevertheless a historic breakthrough in the evolution of the UN climate regime. While much work remains, and there are clear shortcomings, the Paris Agreement provides a strong foundation for mobilizing countries around the world to transition to a low emissions development path and to 100% renewable energy. The Paris Agreement ensures sufficient nation state control over their own commitments to keep nations engaged. It provides significant, if inadequate assistance for developing countries, adequate transparency, and an innovative and regular stock-taking and review process.

These elements, in combination with an ambitious long-term goal, do offer a recipe for success. Importantly, the agreement makes it clear that current mitigation and financial commitments represent the floor, not the ceiling of efforts required, so the expressed expectation is that each 5 year stock staking exercise will pressure parties to increase their ambition toward a collective effort sufficient to meet the long-term goals set out in the agreement.

Assessment of the Paris Agreement


With respect to the negotiating process itself, it is clear that the French presidency learned from past failures such as the Copenhagen COP in 2009. It resisted, throughout the two-week marathon, the temptation to shift from an open negotiating approach that included all Parties to one that focused on negotiating blocs and Parties considered to be key to a successful outcome. It did so by using the plenary to identify areas of contention, and by encouraging informal negotiating groups to self identify to seek common ground. It also ensured that every party had the opportunity to review each successive version of the text, and to submit its views directly to the presidency. In the end, it was remarkable given the substance of the agreement, that Nicaragua stood alone in the final plenary in openly criticising the final text.

If there was a shortcoming in the process, it was that negotiations were less accessible to civil society than some other climate negotiations. While last minute negotiations clearly have to be held in private to be successful, the French presidency closed negotiating sessions to observers much earlier in the process than usual. The result was perhaps unnecessary speculation about who was responsible for the removal of gender and human rights language in the purpose section, and for the weakening of long-term ambition language. It also meant it was more difficult for civil society to play its usual role of holding obstructing delegations to account for their role in the negotiations. It may have made agreement easier, but likely did not contribute to a stronger outcome.[4]

Agreement to include the desire to keep global average temperature increases below 1.5 degrees was perhaps the biggest surprise and accomplishment of the Paris negotiations. Small island developing states had been pushing for a 1.5 degree long term ambition goal since before Copenhagen, arguing that anything more would threaten their existence. Until Paris, these efforts were largely ignored by the major negotiating blocks and seemed to have little hope of success. Nevertheless, in Paris, Parties agreed to include the 1.5 goal as part of the long term ambition text, even if it is framed in aspirational language compared to a more clear commitment to keep temperature increases well below 2 degrees. Arguably, 1.5 degrees has now become the ultimate standard against which the success of collective mitigation efforts will be measured. The long term ambition goal provides an important foundation for each country’s future nationally determined contributions, their justification on equity grounds, and the 5-year (stock taking) review cycles. Over time, the 1.5 degree goal can be expected to shape discussions on other elements of the long term ambition text, such as timeframes for the global peak of emissions and for reaching GHG neutrality.[5]

One of the more difficult issues for negotiators in Paris was how to address the inadequacy of mitigation commitments in light of the long-term goal.  The mitigation gap was separated in the negotiations into two time periods, pre-2020, and post-2020.  The year 2020 is key as it is the date the Paris Agreement is due to come into force. The main challenge for pre-2020 ambition was that inadequate interim arrangements for the period up to 2020 had been put into place gradually over the past 5 years largely based on pledges resulting from the Copenhagen Accord and the Doha Amendments to the Kyoto Protocol.  The focus of the negotiations had, for some time, been on the post 2020 regime. The COP decision in Paris nevertheless make an effort to address the pre 2020 ambition gap through general language to encourage parties to continue their efforts to bridge the gap, through a number of processes designed to encourage increased ambition, and through the appointment of two high level champions to lead the effort to bridge the pre-2020 ambition gap.[6]

The Paris Agreement also explicitly recognizes the post 2020 ambition gap. The mitigation gap is quantified to be upward of 15 gigatonnes by 2030. To bridge this gap, Parties' nationally determined contributions are to be reviewed every 5 years through stock taking exercises starting in 2018. Consistent with the commitment to bottom up contributions, there is no top down mechanism for allocating responsibility to fill the emissions gap among parties. Rather, parties will be asked, through the stock taking process, to reflect on scientific advice provided by the IPCC (including a 2018 special report on 1.5 degrees pathways), national circumstances, and unspecified equity considerations, to review, revise and justify their contribution to the global effort.[7]

Finance was predicted to be one of the possible deal breakers of the climate talks. A key issue was the adequacy and status of the previous commitment to mobilize funding of USD 100 billion a year by 2020.  Other areas of disagreement included sources of funding, the split between public and private funding, and the allocation of funding, particularly among mitigation, adaptation and loss & damage. Another battleground was over the need for predictable scaled up funding before 2020.

In the end, the main surprise with respect to finance was how little progress was needed to in order to enable an overall agreement in Paris. The floor of 100 billion was confirmed, as was the need to consider a ramping up after 2025, but few other details are provided in the agreement. The collective commitment applies only to developed countries, with any contribution from developing countries provided outside the collective commitment on a voluntary basis. Not much progress was made with respect to sources of funding, and no concrete commitments were made for pre-2020 funding.[8]

Agreement was reached on transparency and review of financial support and its use through the global stocktaking process to be carried out every 5 years. The Paris Agreement provides general support for funding for reducing emissions from deforestation and forest degradation (REDD), and calls for the phase out of international support for fossil fuel projects. References in earlier drafts to the phase out of domestic fossil fuel subsidies did not survive the final round of negotiations.

The Paris Agreement contains few surprises with respect to adaptation. It does recognize, for the first time, a global goal of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change. It also articulates the link between the adequacy of mitigation and the adaptation needs of developing countries, and provides for balance between mitigation and adaptation funding. Otherwise, the agreement largely continues with previous efforts to support adaptation efforts in developing countries at a regional, national and subnational level. Notably, the agreement recognizes the need for adaptation efforts to be gender sensitive.[9]

Loss & damage lived up to its promise to be among the issues that would plague negotiators to the very end. The issue had only recently made its way onto the agenda of the UN climate regime, and only after persistent efforts by small island developing states since 2010. In Warsaw in 2013, a loss & damage mechanism was set up under adaptation, and with a narrow investigative mandate that excluded financial support. In Paris, small island states and other like minded Parties were pushing for loss & damage to be formally recognized as a stand along issue with a broader mandate. A number of developed countries were trying to keep loss & damage out of the agreement all together, or at least keep it under adaptation with the narrow mandate established in Warsaw. The compromise outcome was a stand-alone article for loss & damage in the Paris Agreement with a somewhat broader mandate, but with an explicit waiver with respect to compensation and liability for loss & damage. This exclusion is not in the legally binding agreement, so it could be altered in the future through a COP decision.[10]

The main issue with respect to transparency and compliance was differentiation. Many developed countries were pushing for the same transparency and compliance rules for all parties, whereas key developing countries, such as India and China, were pushing for clear differentiation, with strong transparency and compliance for developed countries, and largely self-monitoring for developing countries. The end result was largely the same transparency rules for everyone, with only minor differentiation, mainly through a commitment to flexibility and support for developing countries. The effectiveness of the transparency provisions will be difficult to assess fully until detailed guidance is developed, but they look promising. On compliance, parties agreed to a facilitation approach for both developed and developing countries.[11]

Concluding Thoughts

The key elements of the Paris Agreement include the nationally determined contributions, significant funding for developing countries, 5 year stock taking and review cycles, transparency, a facilitative approach to compliance, all measured against a strong long term ambition goal that confirms the need for developed countries to lead based on capacity and responsibility and preambular language that includes gender equity, human rights and intergenerational equity.

The message to developed countries is clear. While there are no legally binding emission reduction commitments in the Paris Agreement, developed countries are now under increased scrutiny, and will face growing pressure to demonstrate that they are making an equitable contribution to the global mitigation effort and the long term goal they have endorsed.  In a context of a global commitment to decarbonize, there are environmental and economic imperatives for developed countries to assume a leadership role by becoming GHG emission neutral as soon as possible.


ENDNOTES

  1. The agreements reached in Paris actually consist of the Paris COP Decision and the Paris Agreement.  The latter was adopted in Paris as an Annex to the Paris COP Decision, but is now (as of November 4, 2016) a separate, legally binding agreement.  See UNFCCC, ‘Adoption of the Paris Agreement. Proposal by the President’, Decision 1/CP.21, FCCC/CP/2015/L.9.
  2. For a more detailed assessment, see: The Paris Agreement, Historic Breakthrough or High Stakes Experiment? (2016) 6 Climate Law 1, draft available at: http://ssrn.com/abstract=2708148.
  3. See Jennifer Allan et al., “Summary Of The Paris Climate Change Conference: 29 November – 13 December 2015” Earth Negotiations Bulletin Vol. 12 No. 663 (December 2015), online: http://www.iisd.ca/climate/cop21/enb/  (ENB Summary).
  4. Ibid.
  5. Paris Agreement, Article 2
  6. Paris COP Decision, par 106 - 133
  7. Paris Agreement, Article 14
  8. Paris Agreement, Article 9
  9. Paris Agreement, Article 7
  10. Paris Agreement, Article 8
  11. Paris Agreement, Articles 13, 15


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