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

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.

Action Area 1:  Mitigation 

The key area of action that the Paris Agreement was expected to – and did – address is mitigation. But mitigation is also the ‘soft belly’ of the Agreement, where the entire system rests on a soft structure of ‘nationally determined contributions’ (NDCs) or ‘NDCs’ (Paris Agreement, Articles 3 and 4) set by States parties and to be compiled in a flexible ‘public register’ (Paris Agreement, Article 4(12)). NDCs have been until now referred to as ‘intended nationally determined contributions’ or ‘INDCs’ which were to be submitted by States – and indeed very largely submitted – in accordance with the Decision 1/CP.19, para 2(b), adopted at the Warsaw COP. These covered more than 90% of global annual emissions but the reductions pledged fell short of the level of ambition necessary to reach the 2 °C, let alone 1.5 °C (Decision, para 17).

States can thus choose their level of ambition subject to two requirements, namely the regular updating – at least every five years (Article 4(9)) – and an obligation of non-regression (Article 4(3)). The latter is new and signals what perhaps will become a major new principle of international environmental law in the years to come. This soft structure, which recalls the pledges made by States after Copenhagen and anchored in the Cancun Agreements, was important both politically and legally. From a political standpoint, States get to choose their level of ambition, which allows great room for differentiation in accordance with CBDR. That was part of the price to bring high emitting developing countries under the regulatory system and it may potentially entail – given the non-regression requirement – that States will start by setting unambitious NDCs.  A technical point in this connection relates to the difference between INDCs and NDCs. For those States that have already submitted INDCs, these will count as their first NDCs ‘unless that Party decides otherwise’ (Decision, para. 22). It is unclear whether a country (perhaps after a change of government) may scale back its INDC in setting its first NDC or, in other words, whether the non-regression principle applies already in the transition from INDCs to NDCs. This may well be a purely academic point. That will become clear in the course of 2016.

Legally, NDCs will arise frequently from the targets already set in domestic or European law, which gives them higher (signalling) impact on the private sector. In addition, they are anchored in a provision of the Paris Agreement, and they may qualify under international law as both a binding unilateral act and as a ‘subsequent agreement’ (Article 31(3)(a) VCLT) interpreting provisions of the UNFCCC and the Paris Agreement.  The specific contents of NDCs are yet to be specified. Those submitted before Paris (under the system designed to this effect at the Warsaw COP) were quite diverse in nature and content. The Paris Agreement recognises the need for clarity and transparency (Article 4(8)) and the Decision adopting the Agreement has entrusted the APA with the task of providing guidance to this effect to be adopted by the Meeting of the Parties of the Agreement (‘CMP’) (Decision, paras. 26-28).

Beyond individual NDCs, one major discussion concerned the overall trend in global emissions and the need to reach carbon neutrality sometime in the second half of the XXIst Century. That requires ‘peaking’ emissions as soon as possible, with more time given to developing countries as a matter of CBDR, and then achieving significant reductions so as to reach ‘balance’ between emissions and removals (Paris Agreement, Article 4(1)). The Decision ‘invites’ Parties to communicate by 2020 ‘long-term low greenhouse gas emission development strategies in accordance with Article 4, paragraph 19’ (Decision, para. 36), which will be published on the Secretariat’s website. Underpinning the term ‘balance’ lie important questions of equity (who carries what burden once the future equilibrium, if and once the historical emissions and development arguments have faded away) as well as of geo-engineering. Soft geo-engineering, through afforestation, reforestation, reduced deforestation and enhancement, is clearly encouraged by the Agreement (Paris Agreement, Article 5) but there are more intrusive methods, such as ocean fertilisation (oceans are the most important carbon sink), which the Agreement does not seem to exclude.  (Note, however, the moratorium on ocean fertilization introduced under the Dumping Convention.)

The Paris Agreement calls for a variety of international cooperative mechanisms, both market (e.g. REDD-plus, linking through the circulation of internationally transferred mitigation outcomes or ITMOs, a project-based mechanism) and non-market based. I will refer to them in connection with implementation techniques.

Action Area 2:  Adaptation

Article 7 of the Agreement provides for action on adaptation. Over the years, the political profile of adaptation has gained in importance, particularly since the 2010 Cancun Agreements, which set up a Cancun Adaptation Framework. The Paris Agreement can be seen as a culmination of these profile-raising efforts. Adaptation is now one of the three goals in Article 2 and a specific provision (Article 7) is devoted to it.

Significantly, adaptation is now envisioned as a measurable goal, with Article 7 requiring the adoption by each country of adaptation plans (paragraph 9) and emphasising not only that adaptation efforts by developing countries are to be ‘recognised’ (paragraph 3) but also that they are to be communicated (paragraph 10), recorded in a public registry (paragraph 12) and even included in the global stocktake contemplated in Article 14 of the Agreement (paragraph 14).

Another important point is the connection between, on the one hand, adaptation efforts and, on the other hand, its potential implications from the perspective of social development. Adaptation efforts may potentially require widespread governmental intervention, including population displacement and relocation. Article 7(5) cautions against the possibility that adaptation may become synonymous of intrusion and social engineering. It calls for appropriate ‘consideration of vulnerable groups, communities and ecosystems’ and for ‘integrating adaptation into relevant socioeconomic and environmental policies and actions’. The parameters highlighted in paragraph 5 are relevant not only in the relations between governments and their populations, but must also be taken into account by relevant United Nations bodies and agencies in their development work. After all, the conceptual boundary between ‘adaptation’ and ‘development’ is becoming increasingly blurred.

Action Area 3:  Loss and damage

Another conceptual boundary difficult to draw is that between adaptation and loss and damage, as characterised in Article 8 of the Agreement. In theory, adaptation is a preventive strategy aimed to avoid as much as possible the negative consequences of climate change whereas loss and damage is geared towards coping with the damage that cannot be avoided. In other terms, adaptation is (still) about prevention whereas loss and damage is about response (and potentially reparation). Another way to see it is that adaptation is a long-term process whereas loss and damage is about disaster response.

In practice, however, aside from the question of reparation, which is expressly excluded from loss and damage, not much daylight separates both conceptual categories. Indeed, the resilience and vulnerability reduction sought through adaptation plans encompasses responses to extreme weather events and slow onset events. The type of early warning systems and emergency preparedness plans referred to in Article 7(4) are likely to feature in any proper adaptation plan. This is not a purely conceptual point to the extent that the implementation measures (including the finance) set out in the Agreement only apply expressly to adaptation (Article 7) and not to loss and damage (hence the interrogation signs in figure 1 above).

Two important questions in connection with loss and damage are compensation for the loss already caused and climate change-related displacement. None is expressly mentioned in Article 7, but the Decision introduces two clarifications. Displacement relating to the adverse impacts of climate change is expressly contemplated in paragraph 50 of the Decision, according to which the COP entrusts the Warsaw International Mechanism on Loss and Damage with the setting up of a task force to develop, in collaboration with other bodies ‘recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change’. This is a very welcome development and contrasts with the laconic and firm rejection of the connection between loss and damage and liability (Decision, para. 52), a point on which the United States was adamant.

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The implementation machinery relating to the above three action areas is not the same. Whereas mitigation and adaption share a great deal, the situation of loss and damage still seems rather confined.  Tomorrow, I will discuss the main innovation of the Paris Agreement – its implementation techniques – and conclude with some observations.