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.)
The Duty to Negotiate in Good Faith qua Implementation of the Paris Agreement
Robert Kolb (Good Faith in International Law, Bloomsbury, 2017) helpfully discusses the contours of this obligation in the following terms, and enumerates the kinds of acts during negotiations that violate expectations of good faith, especially as to achieving the objects and purposes of negotiations:
“To negotiate means to enter into a phase of common effort for the achievement of a certain aim. It would be preposterous to allow one or other of the parties to conduct itself in such a way as to render the whole process futile. There are two objects of a negotiation: a general one and a special one. The first concerns all that is necessary to secure that negotiations as such remain meaningful; the second concerns the specific object of a negotiation, such as the sharing of water resources of a given river. On the issue of general object and purpose, good faith provides for a series of material obligations, as does the principle of interpretation and execution in good faith in the context of the pacta sunt servanda rule…
(i) the negotiations must be conducted in such a way that they are meaningful, i.e. with a true intention to progress and conclude – which is not the case if a party refuses to take duly into account the positions of the adverse party or rejects immediately all reasonable proposals;
(ii) during negotiations, measures causing disproportionate harm to the other parties and little advantage to one’s own should be avoided;
(iii) the contempt for agreed procedures is contrary to good faith and possibly also to some legal engagement;
(iv) the manifestly unjustified interruption of negotiations, for example in order not to be confronted with a reasonable proposal of the other party, is contrary to good faith…
(v) in some cases of a closer knit between the parties, for example, some strong agreement to negotiate or to agree, good faith may imply an obligation to accept a reasonable compromise;
(vi) there is a general duty not to aggravate the dispute by deliberate acts during the negotiation…” (Kolb, 2017. Italics added.)
Among its various objects and purposes in the Preamble of the Paris Agreement, it is crucial that Parties to this treaty acknowledge that: 1) climate change “is a common concern of humankind” (Preamble, para. 11); 2) “Parties may be affected not only by climate change, but also by the impacts of measures taken in response to it” (Preamble, para. 7); and 3) “the need for an effective and progressive response to the urgent threat of climate change on the basis of the best available scientific knowledge” (Preamble, para. 4, Italics added.). Among the progressive responses contemplated in the treaty is Article 6, which emphasizes that Parties will avoid double counting (Article 6, para. 2) and create a mechanism to contribute to the mitigation of greenhouse gas emissions (Article 6, para. 4):
1. Parties recognize that some Parties choose to pursue voluntary cooperation in the implementation of their nationally determined contributions to allow for higher ambition in their mitigation and adaptation actions and to promote sustainable development and environmental integrity.
2. Parties shall, where engaging on a voluntary basis in cooperative approaches that involve the use of internationally transferred mitigation outcomes towards nationally determined contributions, promote sustainable development and ensure environmental integrity and transparency, including in governance, and shall apply robust accounting to ensure, inter alia, the avoidance of double counting, consistent with guidance adopted by the Conference of the Parties serving as the meeting of the Parties to this Agreement.
3. The use of internationally transferred mitigation outcomes to achieve nationally determined contributions under this Agreement shall be voluntary and authorized by participating Parties.
4. A mechanism to contribute to the mitigation of greenhouse gas emissions and support sustainable development is hereby established under the authority and guidance of the Conference of the Parties serving as the meeting of the Parties to this Agreement for use by Parties on a voluntary basis. It shall be supervised by a body designated by the Conference of the Parties serving as the meeting of the Parties to this Agreement, and shall aim:
(a) To promote the mitigation of greenhouse gas emissions while fostering sustainable development;
(b) To incentivize and facilitate participation in the mitigation of greenhouse gas emissions by public and private entities authorized by a Party;
(c) To contribute to the reduction of emission levels in the host Party, which will benefit from mitigation activities resulting in emission reductions that
can also be used by another Party to fulfil its nationally determined contribution; and
(d) To deliver an overall mitigation in global emissions.
5. Emission reductions resulting from the mechanism referred to in paragraph 4 of this Article shall not be used to demonstrate achievement of the host Party’s nationally determined contribution if used by another Party to demonstrate achievement of its nationally determined contribution.
6. The Conference of the Parties serving as the meeting of the Parties to this Agreement shall ensure that a share of the proceeds from activities under the mechanism referred to in paragraph 4 of this Article is used to cover administrative expenses as well as to assist developing country Parties that are particularly vulnerable to the adverse effects of climate change to meet the costs of adaptation.
7. The Conference of the Parties serving as the meeting of the Parties to this Agreement shall adopt rules, modalities and procedures for the mechanism referred to in paragraph 4 of this Article at its first session.
8. Parties recognize the importance of integrated, holistic and balanced non-market approaches being available to Parties to assist in the implementation of their nationally determined contributions, in the context of sustainable development and poverty eradication, in a coordinated and effective manner, including through, inter alia, mitigation, adaptation, finance, technology transfer and capacity building, as appropriate. These approaches shall aim to:
(a) Promote mitigation and adaptation ambition;
(b) Enhance public and private sector participation in the implementation of nationally determined contributions; and
(c) Enable opportunities for coordination across instruments and relevant institutional arrangements.
9. A framework for non-market approaches to sustainable development is hereby defined to promote the non-market approaches referred to in paragraph 8 of this Article.” (Emphasis added.)
The impasse over whether to permit the carryover of existing carbon credits (around 4 billion CDRs) in designing the Article 6(4) mechanism turns on the question of whether permitting this carryover would defeat the Article 6(2) obligation to ensure robust accounting in a manner that avoids double counting (e.g. counting the same emission reduction more than once to achieve climate mitigation targets). The relevant question, for the purpose of ascertaining the possible breach of the good faith duty to negotiate, is whether this impasse from holdout positions fails to make further negotiations truly meaningful (e.g. with a true intention to conclude agreement on how to implement Article 6 of the Paris Agreement). In my view, it is highly questionable if insisting on the carryover affirms the objects and purposes of the Paris Agreement, especially when it emphasizes the need for an “effective and progressive response to climate change”. How is maintaining the existing credits from the failed and flawed Clean Development Mechanism a “progressive response to climate change” envisaged as one of the key objects and purposes of the Paris Agreement, especially when the same CDM has been found to result in problematic double counting sought to be avoided in Article 6(2) of the Paris Agreement?
One can imagine that the recognition of an international legal obligation to negotiate in good faith – and in a manner that makes negotiations truly meaningful – can go a long way towards preventing further punting of implementation of Article 6 of the Paris Agreement years down the line after failures in COP24 Katowice and COP25 Madrid. Could this particular independent obligation to negotiate in good faith be vindicated in international litigation (e.g. could the International Court of Justice in a post-Gambia v. Myanmar expanded jurisdiction scenario be a plausible venue for a suit of this nature?), or international arbitration (e.g. how would this obligation be translated in disputes under new innovations to arbitration rules such as the Hague Rules on Business and Human Rights Arbitration and the PCA’s Optional Rules for Arbitration of Disputes relating to Natural Resources and the Environment)?
Establishing the existence of the international legal obligation to negotiate in good faith to implement Article 6 of the Paris Agreement is of course separate from the many jurisdictional and operational effectiveness considerations one would have to deliberate. My point here is to show that this is not outside the realm of legal possibility. Were we not faced with a shared time-sensitive global emergency of this magnitude, I would have similar faith in encouraging mainly voluntary, cooperative, and gradualist actions by government leaders to eventually get us all to 1.5 degree Celsius. But we don’t have the luxury of time. Our shared global emergency in our oceans, atmosphere, land, and ecosystems demands, in my view, a different response from the invisible college of international law. The principle of intergenerational equity demands no less that we remain open to the full spectrum of remedies under international law to compel States to act to ensure full implementation of the Paris Agreement, even if that means resorting to a whole host of climate change-based international litigation, adjudication and/or arbitration at this point.