The failure of the 25th negotiating year by the UN Framework Convention on Climate Change’s (UNFCCC) Conference of Parties (COP25) held this month in Madrid to achieve the necessary global decisions to implement Article 6 of the Paris Agreement on the creation of an international carbon trading system points to some glaring structural – and not just political – deficits in the international system. While accusations have been heaped on all sides against countries such as Brazil, India, and China (who held out for carryovers of around 4 billion of unsold certified emission reductions or CERS, which represent existing carbon credits under the Kyoto Protocol’s Clean Development Mechanism), Australia (who reportedly argued that carryover of its CERS would show it meets its carbon targets), and the United States (who reportedly argued for language under Article 8 of the Paris Agreement that would insulate the United States from any obligation to compensate for any climate -related loss and damage), no indications have been given on how to break the negotiations impasse well before the COP26 next year in Glasgow. Only the European Union thus far has put forward bold policies and taken decisions to achieve climate-neutrality for its territory by 2050. This dismal outcome does lead me to doubt what the eminent environmental law scholar Professor Dan Bodansky strenuously argued back in 2016:
“From start to finish, the question of legal form or character was central to the Paris negotiations. The Paris Agreement is a treaty within the definition of the Vienna Convention on the Law of Treaties, but not every provision of the agreement creates a legal obligation. It contains a mix of mandatory and non-mandatory provisions relating to parties’ mitigation contributions, as well as to the other elements of the Durban Platform, including adaptation and finance. One cannot definitively say how much the legally binding character of the Paris Agreement matters. Making the agreement legally binding may provide a greater signal of commitment and greater assurance of com- pliance. But transparency, accountability and precision can also make a significant difference, and legal bindingness can be a double-edged sword if it leads States not to participate or to make less ambitious commitments. Thus, the issue of legal character, though important, is only one factor in assessing the significance of the Paris outcome.” (Italics added.)
Notwithstanding the tremendous global political mobilization galvanized by Greta Thunberg alongside the rise of climate change activism around the world, and the optimism that some in the environmental law community seems to place on the greater impact of transparency in the Paris Agreement to encourage State compliance (one I still shared back in 2015), this year-end 2019 I have less confidence in voluntary cooperative strategies alone. A November 2019 report led by the former Chair of the Intergovernmental Panel on Climate Change confirmed that most countries will not make their Paris Agreement targets:
“To achieve the Paris Agreement’s most ambitious goal of keeping global warming below 1.5 degree Celsius above pre-industrial levels requires reducing global greenhouse gas emissions (GHG) by 50 percent by 2030, and some of these pledges are unlikely to be achieved.
Of the 184 climate pledges, 36 were deemed sufficient (20 percent), 12 partially sufficient (6 percent), 8 partially insufficient (4 percent), and 128 insufficient (70 percent).
Because the climate pledges are voluntary, technicalities, loopholes, and conditions continue to postpone decisive global action to reduce emissions and address climate change.” (Emphasis and italics added.)
Under this reality, shouldn’t the ‘invisible college of international lawyers’ devote more efforts today towards reviving the blunt edge of climate change-based national, regional, or international litigation, adjudication, and arbitration towards reaching sufficiency of climate pledges for 70% of the world, and actual monitoring and enforcement of all climate pledges? While some might see the proliferation of coercive legal enforcement as perhaps anathema to the deliberate design of the Paris Agreement, the last few years have witnessed a sharp rise in climate change-based domestic litigation; climate change-based petitions at human rights treaty bodies; a recent 2019 Philippine Constitutional Commission on Human Rights report concluding that the Carbon Majors (47 of the world’s biggest fossil fuel firms) could be held legally liable for violating human rights; and various opinions (see here, here, here, here, here, here, among many others) on how international arbitration could be used for climate change-based or climate change-related disputes, especially on challenging the adequacy or appropriateness of the multiple individual mitigation and adaptation policies and strategies of States and businesses and the impacts of those policies and strategies on populations. There is clearly no shortage of international legal remedies being exhausted for climate change-related disputes, except for the most important one: getting States to act with despatch, negotiate in good faith, and to fulfill Paris Agreement targets sufficiently. The reason often advanced is that this part of the Paris Agreement is not legally binding and thus cannot be subject of any legal enforcement anywhere. But is it? While one can plausibly argue that the nationally determined contributions (NDCs) set by States pursuant to the Paris Agreement are not hard legal commitments (as rightly shown by Jorge Vinuales in this blog here, here, and here), as others have argued (here, here, and here) various other procedural obligations as to transparency, reporting, and accountability are legally binding. However, the absence of explicit legal sanction or punitive consequences in the text of the Paris Agreement treaty arguably operates to reinforce, embolden, and empower ‘holdouts’ in the COP negotiations who can take extreme positions to delay reaching decisions to implement the Paris Agreement.
At the very least, I would argue that, even within the hard and soft letter of the Paris Agreement, is interwoven an independent (customary) international legal obligation to negotiate in good faith that could be the substantive basis for incurring international or State responsibility. This obligation does NOT pertain to the specific realization of climate targets, but rather, refers to the good faith obligation of States to ensure that negotiations to implement the Paris Agreement remain meaningful. This would squarely question whether the holdout positions on maintaining carryover credits under the Kyoto Protocol’s Clean Development Mechanism would still keep negotiations meaningful to realize the international carbon trading system under Article 6 of the Paris Agreement. In this post, I evaluate the Paris Agreement text (especially Article 6) alongside the objects and purposes of the Agreement and various embedded obligations within the Agreement, against the International Court of Justice’s recent test for determining the existence of an international legal obligation to negotiate as articulated in its 2018 Judgment in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile):
“…for there to be an obligation to negotiate on the basis of an agreement, the terms used by the parties, the subject-matter and the conditions of the negotiations must demonstrate an intention of the parties to be legally bound. This intention, in the absence of express terms indicating the existence of a legal commitment, may be established on the basis of an objective examination of all the evidence.” (2018 Judgment, para. 91. Italics added.)