The legal impact of the Paris Agreement on Climate Change: some authoritative views
Last Wednesday I had the chance to assist, as a special envoyée from the Green Law Department of Queen Mary Pro Bono Society, to a very interesting seminar organised by the British Institute for International and Comparative Law, located in Russell Square, London.
Special guests to this event – sponsored by the boutique firm expert of public international law and arbitration Volterra Fietta – were a number of experts within the field of international environmental law: Caroline Ross from the Department of Energy & Climate Change, who headed the UK delegation at the COP21, Jacob Werksman, Principal Adviser to Directorate General for Climate Action European Commission, Kate Cook, an international public and environmental law barrister from Matrix Chambers and founder of the Legal Response Initiative and Farhana Yamin, Adviser of the Marshall Islands and Founder and CEO of Track 0. The panel was chaired by Lord Carnwath, Justice of the Supreme Court, who has always shown during his long and prestigious career a deep interest for environmental law, including the initiative of effectively implementing environmental agreements by domestic courts.
The reflections that will now follow intend to serve as a summary of the presentations each of the speakers offered at the event, and carry with them some legal technicalities, even though I hope they will be intelligible and of interest to readers beyond the legal field too. The purpose of this article is also that of providing a follow up to the article written for Green Watch, “’Warming up’ for the Paris Conference on Climate Change – What to know” in November, which provides a good background for those willing to refresh their memory on the recently held COP21 (access article here).
As head of the UK delegation to COP21, Ross started by giving the context of the agreement as adopted on December 12, 2015. She started with some fundamental elements of the UNFCCC, such as the very broad objective as stated in Article 2, and the principle of common but differentiated responsibility as reflected in Annex 1 and 2, where OECD state-members are apportioned weightier obligations. The legal status of the Paris outcome, after years of attempts, was that of an internationally binding agreement, the Paris Agreement (PA), including the COP decision 1/CP.21, under which $100 billion of cash flow for climate finance mobilisation were agreed, guidelines for the implementation of the agreement and active steps to take as pre-2020 action were provided, along with a clarification that there is no scheme yet envisaged for compensation for loss and damage.
The PA provides for a limitation of “the increase in the global average temperature to well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels”. Its significance is in the new way of treating the differentiation of the obligations of developed and developing countries, which is not only shown in the annexes but throughout the agreement, in a much more complex manner, focused on practical implementation of the PA, including new global adaptation goals.
How will litigation be treated? Ross explained that the Intended National Determined Contributions (INDCs) are considered the heart of this new regime put in place, and there is an obligation on state parties under Art 4.2 to have national litigation intended to achieve the INDC to which each country has agreed.
These INDCs are stored in a public registry that is available online here. Moreover, state parties are obliged to make such contributions progressive, beyond their current goal, towards higher ambitions, and differentiation is expressed in the sense that developed countries should take the lead in such action. Every 5 years the INDCs should be reviewed: to this extent a collective stocktake was put in place to look at mitigation and adaptation, means for implementation and the objective each state is achieving, as short and long term goals. Furthermore, active expert reporting mechanism is envisaged by the PA to track progression. Thus far 55 countries have ratified the agreement, representing 55% of the total global gas emissions. There is still a lot of work to be done in terms of guidance and cooperation of EU and UK for the internal evolution of INDCs but overall the outcome of the PA is to be welcomed.
Werksman’s main focus was on the legal character of the PA itself: indeed why binding agreements are considered so important? Along with being the highest expressions of political will of the states these treaties have the power to strongly influence other actors acting in the international sphere. As such, the PA carries specificity and clarity of mandatory nature, transparency mechanisms, and a whole set of bodies depending on it. On a ‘bindingness’ scale, he would consider the PA less binding than the Kyoto Protocol but definitely more than the UNFCCC.
The PA is not a protocol binding but virtually indistinguishable from that. Even where, at domestic level it may be implemented in different ways from country to country, its mandatory nature will be preserved. The variety of language used in the PA is aimed at being as inclusive as possible but also at expressing the differences of states to the will of binding themselves to the treaty. Each country got to decide the kind of policies it was going to sign for, some very specific, some very general. The other reason for the language being comprehensive was the need for flexibility to take into account differences in national circumstances such as the capacity or the size of the economy of a state so that the provisions attach to a different degree to each state based on their national circumstances. However, strong evidence-based mechanisms are in place to monitor the progression of each state to a high degree of accountability.
There are some aspects of the PA in relation to the UNFCCC itself that make the implementation still challenging, mainly because of the difference between developed and developing countries in reference to the convention that may be exploited by states, and the fact that particular legal concerns of the United States had to be taken into consideration at some point in the negotiations. This is, however, a very important aspect to consider, also in view of future negotiations, in the sense that the approval of a determined country is very important, and behind the compromises with the US lie those with many other countries, compromises that, in Werksman’s opinion, do not affect the purpose and strength of the agreement.
Cook stressed the introduction of more weight on human rights protection and eradication of property, and again on the concept of progressive response of the INDC that does not allow commitments on emissions to go backwards, but only onwards. She also expressed positively towards better efforts on climate finance and renewed devotion to the precautionary principle and to the principle of intergenerational equity. The most challenging aspects will be those of maintaining the INDCs compatible with the progressive approach entailed in the PA, the lack of financial projects and the implications to investments both of political and legal nature.
Yamin dwelled extensively on the Paris negotiations as a crucial actor on the side of the small Pacific islands, especially Marshall Islands, in the fight to include the 1.5 degrees threshold – for the first time officially within the convention framework. She explained how the foreign minister Tony de Brum and his delegations strived to reach out to all major actors at the conference through private meetings, to express the urgency on the action in favour of most vulnerable stakeholders.
Finally, the audience, mainly made of already practicing lawyers or academics, engaged with the panel posing questions mainly on the position of the US in considering the PA an executive agreement rather than a treaty and where individual affected by climate change should seek redress since the instrument seems to be silent about it.
Werksman, in addressing the first question was of the opinion that it did not matter under what name would the PA be recognised by the US: under the viewpoint of international law the US would be still as bound as all the other countries.
The latter question on jurisdiction was instead replied by Cook, who was open to myriads of potential possibilities, even though she said that individuals affected in this very moment should refer to national courts under administrative law, constitutional law and human rights law, but many factors would play a weighty role such as, for example, whether the private sector is involved. She underlined the importance of human rights and environmental law converging together through access to justice. She accepted the potential ramification for mitigation ambitions under international law but for the time being national arenas would be a good place to start.
In conclusion, the outcome of the Paris agreement, with a conference counting heads of states and delegations more than ever before, is to be cherished as an historic moment which provides for a real tool to tackle climate change. However, as Yamin pointed out, there are two very important considerations to make: the COP21 does not guarantee success, for those looking for binding targets, compliance and liability. The PA is not about lawyers litigating in court but about lawyers sitting in a room saying that things must change. Secondly, the ultimate aim of the agreement is that of leaving a powerful legacy for the next generations on which to act upon.
Daria Ermini
Acess photo here.