Paris Agreement Regained or Lost? Initial Thoughts

Headlines recently announced the end of a critical climate summit in Katowice, Poland.  Katowice had played host to the 24^thConference of the Parties meeting (COP24) under the United Nations Framework Convention on Climate Change (UNFCCC).  The summit was billed as a “make or break” moment for the world community. Three years had passed after world leaders emerged from climate negotiations in France with the Paris Agreement.  After the initial euphoria wore off, reality set in that while climate change was accelerating, mitigation efforts under the Paris Agreement were falling behind schedule.  And the city of Paris itself has become a powerful symbol for the difficulties faced by the Katowice negotiators.  Three short years after being the cradle of a new hope, French measures to implement the Paris Agreement gave rise to the Yellow Vest protests. These protests eventually laid siege to the city of Paris itself.  The picture that emerged: the Arc de Triomphe engulfed in smokeas a signature policy initiative by the French government to implement the Paris Agreement went up in flames. 

So – how successful was COP24? Did it succeed in rescuing the Paris Agreement? Or is Paris in ruins?

Paris Regained – The Katowice Climate Package

COP24 was the next transformational step in the development of a climate commons law.  It doubled down on a commitment to the Paris paradigm of a reliance-based climate process of decision.  COP24 therefore has gone a long way to confirming and redeeming the progress made at Paris.

True to the path chosen in Paris, the COP24’s signature achievement was agreement on process. The Paris Agreement is not a treaty that fits the binary mold of binding/ hortatory treaty-making. Rather, the Paris Agreement fights climate change through organic engagement by requiring states (1) to make nationally determined contributions to greenhouse gas mitigation (NDCs), (2) to aim to meet their NDCs, and (3) transparently report on national greenhouse gas emissions.  The COP24 parties agreed to a common grammar with which to engage pursuant to the Paris Agreement, dubbed the Katowice Climate Package (KCP).  This grammar now gives NDCs more meaning or “bite” – and promises to support a hardening of NDCs into free-standing binding commitments.

The constitutive pieces of the KCP grammar directly concern communication. Article 13 of the Paris Agreement requires regular climate change reporting from member states.  The KCP with limited exceptions for developing countriesapplies a single set of principles or language to this reporting.  (p. 64, ¶ 4; p. 70, ¶ 20).  KCP transparency rules further require that reports be drafted so as to allow readers to “track progress in implementing and achieving its NDC.” (p. 68, ¶ 10(b)).  

At the same time, the KCP applies this greater rigor to NDCs themselves.  NDCs are only as good as the reference points to which they are anchored.  The KCP now requiresthat these references be made based upon quantifiable, source-cited information (p. 17, ¶ 1(b), (e)) disclosing assumptions and methodological approaches (p. 18, ¶ 5) and providing granular sectoral disclosures and insight into the planning process.  (p. 17, ¶¶ 3(b), 4(a)). It holds parties to account by requiring disclosure “how the Party considers that its nationally determined contribution is fair and ambitious in the light of its national circumstances” (p. 19, ¶ 6 (a)).  In short, due to the KCP NDCs are no longer lost in translation but can be compared to each other.

These mechanisms may appear technical in nature. But they are not.  They are at the heart of replacing traditional, binary international law presumptions of the binding or non-binding nature of treaty commitments with a growth of commitments through trust building.  The KCP systematically strengthens trust in NDCs by making NDCs and reporting about NDCs significantly more concrete and transparent.  This trust in legal terms does not mature into an obligation immediately bur rather translates into reliance interests.  Reliance interests eschew binary classification and bind on a sliding scale.  The more reasonable a reliance interest, the more compelling the reasons must to abandon the commitments that gave rise to it by operation of the principle of good faith. 

The structure of the Paris Agreement already suggests this shift.  The heart of the Paris Agreement is Article 4(2). It require that “Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.” (emphasis added). The reference to “contributions” pulls in the NDCs.  The more concrete the NDCs, the firmer the “aim” the parties have committed themselves to achieving.  And the KCP is a commitment to making NDCs more concrete.  The reference to “achieving” pulls in the reporting requirement in Article 13 and its stocktake exercise.  And the KCP is a commitment to more transparent reporting about NDC progress and appraisal of future improvements needed to meet NDC goals. 

Article 4(2) thus powerfully illustrates the impact of the KCP.  It is an obligation conditioned upon achievement.  The KCP re-commits to measuring this achievement.  The KCP thus provides the means by which the Paris Agreement can strengthen reliance interest.  And Article 4(2) provides a textual foothold for the enforceability of such reliance interests.

But the KCP transcends the purely positivist reading of the Paris Agreement.  The Paris parties did not adopt the KCP because of Article 4(2) of the Paris Agreement.  They adopted the KCP because they are committed to the process of climate commons law rulemaking.  That commitment is a matter not of positive treaty law but the result of the polycentric, multivalent engagement between states and between states and world society under the auspices of the Paris Agreement and the UNFCCC.  The fact of the KCP’s adoption thus is a sign of the healthy development of a constitutive climate process that operates beneath the positive legal structure. Its adoption in the face of global headwinds more than suggests that COP24 set out to rescue, or more precisely took significant steps to vindicate, the Paris paradigm to climate commons law.  (To illustrate the tenacity of this process, theUnited States voted in favor of the KCPdespite having vowed to abandon the Paris Agreement. This vote suggests an awareness of and continued commitment to a constitutive climate process that goes deeper than the Paris Agreement.)

Paris Lost? 

The COP24 results have come under immediate criticism.  Much of this criticism is justified.  Thus, Brazil managed to hold up agreement on important market rules to implement the mitigation market outlined in Article 6 of the Paris Agreement.  Further, the rules are far from the most ambitious set of rules proposed.  They continue to make some room for creative accounting and do so particularly for developing countries. 

These failures reflect the hard collision of climate and economic policies.  The Yellow Vest protests show that both imperatives clash and clash violently even in developed countries.  Compliance with the Paris Agreement requires significant shifts in energy policy – and many poorer communities, particularly rural communities, will feel the brunt of the shift after having already been left behind by the technology shift in the world economy.  Climate policy unwittingly can thus exacerbate a rural-urban divide already driving Western politics towards radical ring-wing forces. 

Perhaps the best hope to address this gap is to think of retooling the Article 6 marketplace mechanism to draw in private actors.  There is a demand for greenhouse gas mitigation that is currently under-supplied. Given the lack of supply, a market should create an attractive price for providers of greenhouse mitigation. This year’s Nobel laureate in Economicsin fact has been able to calculate what a willing buyer of mitigation should pay a willing service provider per ton of carbon mitigated.  The problem is – there is no robust marketplace in which a buyer could pay this price and thus no service provider with an incentive to create the service.  The experience with past failed market experiments and the current struggles to set up an Article 6 marketplace highlight the challenge.  That does not mean one should give up the quest.

The failures of the COP24 are symptomatic for a need to broaden the scope of Paris from an international to a truly transnational initiative.  As it stands, UN reports make it hard to believe that mitigation goals can be met by states alone without robust private participation.  The KCP was able to create a firmer sense of demand for mitigation by creating stronger, more transparent rules on mitigation accounting. The KCP also reconfirmed the organic path to legal commitment standing behind NDCs as a continued, viable policymaking option.  But it so far failed to harness the power of the marketplace as an ally to fight climate change.  Unless we address this problem, the policy alternatives currently available lead us back to the smoky pictures of the Arc de Triomphe.  To borrow from Tolkien, it is thus not an exaggeration to say that even after Katowice the Paris Agreement “stands upon the edge of a knife, stray but a little and it will fail.” (p.357)