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The Paris Climate Agreement: An Initial Examination (Part III of III)

Published on February 8, 2016        Author: 

Editor’s Note: This is the last post in a series (see Part I and Part II) featuring Professor Jorge Viñuales’ analysis of the landmark December 2015 Paris Agreement. Professor Viñuales is the Harold Samuel Professor of Law and Environmental Policy at the University of Cambridge Faculty of Law and the Director of the Cambridge Centre for Environment, Energy, and Natural Resource Governance (C-EENRG).

Implementation techniques

The main innovation of the Paris Agreement lies in its implementation techniques and, particularly, the ‘enhanced transparency framework for action and support’ established by Article 13. This mechanism, the first of its kind in global environmental governance, is the embodiment of the approach, followed since the launching of the ADP in 2011, according to which emission targets would be set domestically and measuring, reporting and verification (MRV) would be organised at the international level. It is, of course, not the only technique, as the Agreement also contemplates many others. For analytical purposes, I will make a distinction between information-based techniques, facilitative techniques and the management of non-compliance.

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The Paris Climate Agreement: An Initial Examination (Part II of III)

Published on February 8, 2016        Author: 

Editor’s Note:  This is the second in a series of three posts that continues Professor Jorge Viñuales’ analysis of the landmark December 2015 Paris Agreement.  Professor Viñuales is the Harold Samuel Professor of Law and Environmental Policy at the University of Cambridge Faculty of Law and the Director of the Cambridge Centre for Environment, Energy, and Natural Resource Governance (C-EENRG).

In yesterday’s post, I examined the context leading to the Paris Agreement, its basic legal structure and goals. ‘The Paris Agreement is appended as an Annex to the ‘Adoption of the Paris Agreement’, Draft Decision -/CP.21, 12 December 2015, FCCC/CP/2015/L.9 (‘Decision’). Today’s post proceeds to scrutinize the Agreement’s three main action areas.  Tomorrow’s final post discusses the implementation techniques applicable in the Agreement, and offers concluding observations.

Action areas

The Paris Agreement sets three main action areas, two of which – mitigation (Articles 3-6) and adaptation (Article 7) – are given particular weight, whereas the third – loss and damage (Article 8) – is more circumscribed, and perhaps even confined within narrow bounds.

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The Paris Climate Agreement: An Initial Examination (Part I of III)

Published on February 7, 2016        Author: 

Editor’s Note:  This is the first in a series of three posts analyzing the landmark December 2015 Paris Agreement, authored by Professor Jorge Viñuales, the Harold Samuel Professor of Law and Environmental Policy at the University of Cambridge Faculty of Law and the Director of the Cambridge Centre for Environment, Energy, and Natural Resource Governance (C-EENRG).

Less is more, at least sometimes. The 21st Conference of the Parties to the United Nations Framework Convention on Climate Change (‘UNFCCC’) resulted – against all odds – in the adoption of a ‘Paris Agreement’ (hereafter, “Decision”) which will be opened for signature on the 22 April 2016. (The Paris Agreement is appended as the Annex to the Decision.) The Paris Agreement is not perfect, but is more than many of those who have followed the climate negotiations over the years realistically expected.  My purpose here is not to provide a comprehensive analysis of this instrument. That will come in time, once the new Ad Hoc Working Group on the Paris Agreement (‘APA’) but also a number of other Party and ‘non-Party stakeholders’ (Decision, paras. 134-137).  have provided further details as to both the modalities of the different mechanisms introduced by the Agreement and the variety of nationally determined contributions and other actions pledged in connection with mitigation and adaptation. However, from the perspective of a lawyer and addressing an audience of lawyers, I thought it would not be without interest to provide an annotated snapshot of the legal architecture of the Paris Agreement.  Part I of these posts focus on the context that led to the adoption of the Paris Agreement and provides an original schematic of the Paris Agreement and the goals of the Paris Agreement.  Part II tomorrow will set out the three main components of the Paris Agreement’s architecture and offers concluding observations.  Finally, Part III will discuss the implementation techniques of the Agreement and offer concluding observations.

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A “Legally Binding Treaty” or Not? The Wrong Question for Paris Climate Summit

Published on December 4, 2015        Author: 

Both media and negotiators are spending an inordinate amount of time on whether the Paris climate summit starting this week should lead to a “legally binding treaty”. For the EU Commission, it “must be”. For US Secretary of State John Kerry “definitely not”.

For realist scholars of international relations this obsession is puzzling. In the absence of an international police force, why care about whether a commitment is legally binding? For international lawyers, in contrast, it seems to confirm the self-standing moral authority of their discipline. Why else would politicians hackle about bindingness?

The Paris red herring

Yet, “to treaty or not to treaty” is really not the question. Paris will certainly be a treaty and not be a treaty. Read the rest of this entry…

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UN Climate Change Negotiations: Last Tango in Paris?

Published on November 10, 2015        Author: 

The Paris Climate Change Conference starting on 30 November 2015 is tasked to set the world on a path to address the greatest challenge to ever face humankind, by adopting a new climate agreement. It was hoped that agreement in Paris would bring an end to the impasse that has long affected international climate governance. However, the outlook for the conference is rather bleak. We are just a few weeks away from the conference, but Parties remain far from reaching any agreement. Negotiations under the body entrusted to draft the text of the Paris agreement, the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), have abundantly shown that Parties’ views on how to tackle climate change still significantly diverge. At the end of the last ADP session before Paris, progress on the preparation of the text of the agreement remained limited. In fact, Parties even backtracked on the little compromise they had managed to achieve at earlier ADP sessions. This post reflects on the difficulties experienced in the work of the ADP and on their implications for the Paris conference.

Ever since 1992, Parties to the United Nations Framework Convention on Climate Change (UNFCCC) have attempted to agree on measures to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent ‘dangerous anthropogenic interference with the climate system.’ The international scientific body entrusted to assess climate change, the Intergovernmental Panel on Climate Change (IPCC), has indicated that such a level requires keeping the increase in global annual average temperature below 2° C as compared with pre-industrial times. Over twenty years after its adoption, however, the UNFCCC has struggled to keep the world within the limits indicated by the IPCC. In fact, global emissions of greenhouse gases have anything but diminished.

The reason international climate governance has proven to be such an intractable affair relates both to the enormity of the challenge at hand, as well as to the gaping disparity in States’ capacity to tackle climate change. The main instrument adopted to stabilize greenhouse gas concentrations in the atmosphere under the UNFCCC, the 1997 Kyoto Protocol, fundamentally acknowledged this gap. Building upon a static differentiation between ‘developed’ and ‘developing’ countries, the Protocol imposed binding emission reduction targets only on the first. With ever growing emissions in emerging economies, like China and India, however, the IPCC has repeatedly flagged that both developed and developing countries need to reduce their emissions.

To make matters worse, political will behind the Kyoto Protocol has significantly faltered. Read the rest of this entry…

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Japan’s New Optional Clause Declaration at the ICJ: A Pre-Emptive Strike?

Published on October 20, 2015        Author: 

On the pitch, the best offense is sometimes a good defense. Alternatively, you can simply decide not to play.

It was reported yesterday that Japan has submitted a new reservation to its declaration recognizing the compulsory jurisdiction of the International Court of Justice (ICJ). The new reservation, which is not yet available on the Court’s website, apparently seeks to exclude disputes relating to living marine resources from the Court’s jurisdiction. According to a fact sheet from Japan’s Ministry of Foreign Affairs, Japan considers that such disputes should instead be heard under the dispute settlement provisions of the 1982 UN Convention on the Law of the Sea.

This is an interesting, if not surprising, development. In March 2014, the ICJ held in Whaling in the Antarctic (Australia v. Japan) that Japan’s authorization of special permits for the killing of whales in connection with the research program known as JARPA II did not comply with Article VIII of the International Convention on the Regulation of Whaling (ICRW). Article VIII, paragraph 1, provides that “any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit”. Whaling that is authorized by special permit under Article VIII is exempt from other restrictions imposed by the ICRW regime, including the moratorium on commercial whaling that has been in place since the 1980s.

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Evidence in Environmental/Scientific Exceptions: Some Contrasts between the WTO Panel Report in China-Rare Earths and the ICJ Judgment in Whaling in the Antarctic

Published on April 7, 2014        Author: 

Rare earths imageTwo significant international decisions involving environmental protection claims were issued within the last few days of March 2014.  On 26 March 2014, a World Trade Organization (WTO) Panel issued its Report in China-Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum (hereafter, China-Rare Earths), which held, among others, that “China may not seek to justify the export duties it applies to various forms of rare earths, tungsten, and molybdenum [pictured above left, credit] pursuant to Article XX(b) [exception for measures “necessary to protect human, animal or plant life or health”] of the GATT 1994.” (Panel Report, para. 8.11b)  On 31 March 2014, the International Court of Justice issued its Judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) (hereafter, the Whaling case) where the Court held, among others, that “the special permits granted by Japan in connection with JARPA II [Japanese Whale Research Programme under Special Permit in the Antarctic Phase II] do not fall within the provisions of Article VIII, paragraph 1 [, of the International Convention for the Regulation of Whaling.” [Judgment, para. 247(2)].  In China-Rare Earths, China sought to justify export duties that facially violated Paragraph 11.3 of China’s Accession Protocol to the WTO, by essentially alleging that these duties were justifiable as measures “necessary to protect human, animal, or plant life or health” within the purview of Article XX(b) of GATT 1994.  In the Whaling case, Japan sought to justify JARPA II as a programme “undertaken for purposes of scientific research and is therefore covered by the exemption provided for in Article VIII, paragraph 1, of the [International Convention on the Regulation of Whaling].” (Judgment, para. 49).  While both decisions contain rich analyses of numerous issues of treaty interpretation, one can also look at significant methodological contrasts between the ICJ and the WTO Panel on the treatment of scientific evidence and assignment of evidentiary burdens for the environmental/scientific issues in each case.

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The Right to Regulate for Public Morals Upheld (Somewhat): The WTO Panel Report in EC-Seal Products

Published on January 27, 2014        Author: 

Whitecoat Seal PupThere have been few interpretations of Article XX(a) of the General Agreement on Tariffs and Trade (GATT 1994) – the  specific exception that justifies what would ordinarily be a State’s GATT-inconsistent measure, unless such measure is deemed “necessary to protect public morals”.  As with any of the ten enumerated exceptions under Article XX of GATT 1994, a State invoking GATT Article XX(a) must first meet the requirements of the specific exception (e.g. demonstrating that the challenged measure is indeed “necessary to protect public morals”), and thereafter show that the challenged measure also complies with the overall requirements of ‘good faith’ (Brazil – Measures Affecting Imports of Retreaded Tyres, Appellate Body Report of 3 December 2007, at para. 215) as contained in the chapeau to Article XX (e.g. demonstrating that the challenged measure is not being applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade).  The 25 November 2013 Panel Report in European Communities – Measures Prohibiting the Importation and Marketing of Seal Products [hereafter, “EC-Seal Products“] issued the very first decision upholding a State’s right to regulate for public morals as an exception under Article XX(a) of GATT 1994, in relation to ongoing trade arising from seal hunting (pictured above left,) and seal products.

It may be recalled that the 2009 Panel Report in China- Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products [hereafter, “China – Publications and Audiovisual Products“] was the first occasion for a WTO panel to directly interpret the scope and meaning of measures “necessary to protect public morals” under GATT Article XX(a). China had invoked the “public morals” exception in GATT Article XX(a) to justify a set of measures that regulated the entry of foreign publications, audiovisuals and other media forms.  China argued that its regulations were designed to protect public morals in China by reviewing the content of foreign cultural goods and forms of expression that could potentially collide with significant values in Chinese society.  The China – Publications and Audiovisual Products Panel had little trouble accepting the interpretation of “public morals” (China-Publications and Audiovisual Products, para. 7.759) already laid down in the 2004 Panel Report in United States- Measures Affecting the Cross-Border Supply of Gambling and Betting Services [hereafter, “US-Gambling“], which had defined “public morals” in Article XIV of the General Agreement on Trade in Services (GATS), as “standards of right and wrong conduct maintained by or on behalf of a community or nation” (US – Gambling, para. 6.465).  However, the Panel ultimately rejected China’s assertion of GATT Article XX(a) exception (China-Publications and Audiovisual Products, para. 7.911), finding that China had failed to show the “necessity” of its challenged measures for the supposed purpose of protecting public morals.  The Appellate Body upheld these findings in its December 2009 Report.

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Aerial Herbicide Spraying Case Dead in the Air

Published on September 17, 2013        Author: 

The ICJ has just announced the removal from its list of the Aerial Herbicide Spraying (Ecuador v. Colombia) case (press release; order), which was consensually discontinued as the parties reached an agreement resolving their differences. The main issue in the case was that Colombia’s aerial hearbicide spraying of coca leaf plantations in Colombia (with the ample help of the US in the ‘war on drugs’) harmed the people and environment of Ecuador as in some cases the herbicide drifted accross the border. The 9 September 2013 Agreement:

establishes, inter alia, an exclusion zone, in which Colombia will not conduct aerial spraying operations, creates a Joint Commission to ensure that spraying operations outside that zone have not caused herbicides to drift into Ecuador and, so long as they have not, provides a mechanism for the gradual reduction in the width of the said zone; … sets out operational parameters for Colombia’s spraying programme, records the agreement of the two Governments to ongoing exchanges of information in that regard, and establishes a dispute settlement mechanism.

The case before the ICJ was well advanced, with the written pleadings already completed. While it is of course always a good thing that states are able to resolve their disputes peacefully, it’s to an extent a pity that the Court was not given the opportunity to decide this case, which could have been very important with regard to questions of transboundary harm. It even had one particular issue near and dear to my heart, as Ecuador alleged that Colombia was violating the human rights of Ecuadorians living accross the border, thus raising the issue of the extraterritorial application of the relevant human rights treaties (yet the Court was probably not going to rule on it anyway). Of note is also how the Court’s docket has recently shrunk rather signficantly, partly due to more (and welcome) efficiency and mostly due to a lower number of incoming cases.

UPDATE: But it seems the Court is getting a follow-up to the Nicaragua v. Colombia delimitation case. Lose some, win some.

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Decoding the Durban Platform

Published on December 14, 2011        Author: 

Lavanya Rajamani is a Professor of International Law at the Centre for Policy Research, New Delhi, India.

The Durban climate conference, marked by tension, high drama and sleepless nights, arrived 36 hours after the scheduled end of the conference, at a set of historic decisions. These include decisions to implement the Cancun Agreements, operationalize the Green Climate Fund, extend the Kyoto Protocol for a second commitment period, and launch a new process to negotiate a future climate regime. This was a ‘package deal’ in that without an agreement to negotiate a future climate regime, the EU would not have agreed to a Kyoto second commitment period.

Parties launched a process titled the Durban Platform on Enhanced Action (see here) to negotiate ‘a Protocol, another legal instrument or agreed outcome with legal force under the Convention applicable to all.’ This instrument is scheduled to be adopted in 2015, and implemented from 2020. Although the media has interpreted this decision to mean that all ‘major emitters,’ developed and developing alike, will be legally bound to GHG emissions cuts from 2020, the tortured language used in this decision masks a vast terrain of contestations.

In the lead up to Durban several developing countries were reluctant to endorse a legally binding instrument (see previous post), however India alone held out till the last hours of the conference. India insisted that agreeing to a legally binding instrument was a Cabinet-mandated red line that it could not cross. It could agree at best to launch a process towards a ‘legal outcome’  – which would leave the precise legal form of the instrument open. A ‘legal outcome’ could encompass legally binding instruments as well as Conference of Parties decisions, which although operationally significant, are not, save in the exception, legally binding. This formulation lacked the clarity and ambition that the EU, the Alliance of Small Island States, the Least Developed Countries, many Latin American countries, and even India’s BASIC allies, Brazil and South Africa, were seeking. Critically, this was not sufficient for the EU to endorse a second commitment period. After a fast and furious ‘huddle’ in the final hours of the conference, India agreed to substitute the term ‘legal outcome’ with a marginally less ambiguous term, ‘agreed outcome with legal force,’ thus triggering the acceptance of a Kyoto second commitment period by the EU and its allies. Much of the details on Kyoto will be worked out in 2012, but Durban did give it a new lease of life.

Unlike the terms ‘Protocol’ and ‘another legal instrument’ the term, ‘agreed outcome with legal force’ does not reflexively signal a legally binding instrument. Nevertheless the overwhelming implication of these formulations as well as the political machinations surrounding it is that we are moving towards a legally binding regime. And, one in which the nature and extent of differentiation in favor of developing countries will shift considerably from the existing regime that is rooted in the principle of common but differentiated responsibilities and respective capabilities.

The Durban Platform decision does not contain a reference to ‘equity’ or ‘common but differentiated responsibilities.’ This is no benign oversight.  Read the rest of this entry…

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