Preliminary legal assessment of the Paris Agreement

14/12/2015

The Paris Agreement has given the world hope but – from a legal perspective – not yet the tools to prevent dangerous anthropogenic climate change. It will be formally legally binding when it has been ratified by at least 55 countries representing 55% of global greenhouse gas emissions and entered into force. Many key issues, however, are only addressed in very general terms without defining specific rights and obligations. Large parts of the agreement are worded like COP decisions (e.g. “recognise”) rather than an international treaty. In essence, under the UN Framework Convention on Climate Change (UNFCCC) the parties have created a new ‘framework agreement’ that requires a multitude of further substantive decisions. Most of the real work remains to be done in the preparation of and following its entry into force.

Purpose:
The Agreement’s objective is phrased in an aspirational manner. Common but differentiated responsibilities and respective capabilities, as defined under the Convention with a clear and formal allocation of roles, has not been completely abandoned, but been diluted towards a self-differentiation model. The Agreement contains no references to the Convention’s annexes, and “in light of different national circumstances” will allow Parties to reinterpret – to some extent – existing treaty commitments (under the Convention and the Kyoto Protocol). With regard to finance and technology transfer it may be argued that the new Agreement even falls behind commitments under the Convention.

Mitigation:
The current text expresses the expected ‘bottom-up’ system. The main obligation is to communicate a nationally determined contribution (NDC) in 5 year cycles. So the focus is on process  not outcome  or quality (“intends to achieve”). The NDCs are expected to be increasingly ambitious and anchored within the Agreement through a newly established registry (not an annex). All Parties shall “pursue” domestic measures “with the aim of achieving the objective” of their NDC which is not quite the same as: shall comply with or meet their NDCs.

One of the final discussions amongst the parties was the use of “shall” and “should” in conjunction with undertaking absolute emission reduction targets. The fact that “should” prevailed (to facilitate US membership) is indicative of the Agreement’s gravity and nature.

Adaptation:
Under the UNFCCC developed country parties have agreed to support the adaptation to climate change impacts in developing countries. However, there is no legal obligation on developing countries to adapt to the adverse (or other) effects of climate change. Each party now commits to a degree of adaptation action (“as appropriate”). However, so far, without corresponding clear and predictable financial support by developed country parties.

Loss and damage:
The existing Warsaw Mechanism will operate under the Paris Agreement which does not provide a basis for, or mandate to address issues of liability or compensation. The corresponding part of the accompanying COP decision (para.52) clarifies this. But, at least at this point in time, it does not limit the COP to possibly extend its competencies under the Convention. As a result of the discussion and the final text, however, it may be argued that parties have implicitly accepted that the rules on state responsibility for transboundary pollution apply in the climate change context.

The proposed climate change displacement coordination facility, that survived various iterations of the text, is finally gone. Instead, the COP decision (para.50) requests the Executive Board of the Warsaw Mechanism to establish a task force to develop recommendations for approaches to climate change induced migration.

Finance:
For many years developing countries have been arguing in the climate negotiations that developed country Parties have obligations under Art.4 of the Convention to provide additional financial resources, including the transfer of technology. On finance the Agreement uses vague language (regardless of historic responsibilities) and essentially envisages further ‘charitable’ giving “from a wide variety of sources” “through a variety of actions”. Proposals for more binding financial arrangements (e.g. a burden sharing formula) did not succeed and even the USD 100 billion target is only mentioned in the COP decision (para.54). The Meeting of Parties will set a new goal (from a floor rate of 100 billion) on finance prior to 2025.

Transparency and compliance:
Under the transparency framework, all parties will have to (“shall”) report on their mitigation efforts, and developed country Parties also on finance, technology transfer and capacity building. This information will be subject to a technical expert review. A “mechanism to facilitate implementation of and promote compliance with” the Agreement has been established (Art.15). There are, however, no longer any instances mentioned that would trigger the involvement of the mechanism’s committee.

The proposed International Tribunal for Climate Justice was never likely to make it into the final text, and the parties did not revive the consultative process (on implementation questions) envisaged under Art.13 of the Convention. Despite the Kyoto Protocol experience, parties may also withdraw from the new Agreement (Art.28). Because the Convention explicitly allows for a withdrawal (Art.25) this has always been a tricky issue. However, it would have been possible to draft a more robust provision to prevent a withdrawal from the new Agreement alone.

Other issues:
The Paris Agreement underlines the cross-cutting effect of climate change and mentions, amongst many other things, food security, quality jobs, human rights and “climate justice” in the preamble. While preambular language has no binding legal value it may (to some extent), however, guide the interpretation of the following (operative) provisions.

The text of the final agreement is fundamentally different to the Geneva negotiation text circulated to parties in order to comply with the 6 months rule (Art.17 of the Convention). However, no party raised this concern and procedural errors are remedied if subsequently an agreement on substance is reached. Its content is significantly more detailed than the text proposed by the Co-Chairs in October (then rejected by most parties) but not fundamentally different. The Co-Chairs did – of course – not have the clout or political machinery available to the French Presidency.