The power of 2°C: towards a new paradigm of international lawmaking?

The outcomes of the 21^st Conference of the Parties (COP21) of the UN Framework Convention on Climate Change (UNFCCC) — the Paris Agreement — is widely lauded as a ‘historic’ achievement. It is still up for debate whether the new Agreement will really become a historical turning point that can lead us to a carbon neutral future, as some scientists criticised its empty promises and insufficient actions. However, one implication of the Paris Agreement is clearly ‘historic’ and should be celebrated — it is the most important international treaty adopted in the recent decade, agreed by 195 countries. Despite stagnation in international lawmaking observed by Pauwelyn, Wessel and Wouters (2014), the Paris Agreement under the UNFCCC shows that reaching a multilateral agreement is still possible. In addition to Prof Jorge Viñuales’ recent analysis, in this post I would like to discuss a key factor that makes the Paris Agreement ‘special’, i.e. a strong link between climate talks and numerical standards.

One shining star of the COP21 talks was the so-called 2-degree target — in order to prevent dangerous climate change, global mean temperature should not rise 2 Celsius degrees above preindustrial levels. The target was first recognised by the European Union (EU) in 1996 and has gradually proliferated into political debates and the public sphere (see Randall’s widely cited article for the history of the target). Now 2°C is literally everywhere in the news; CNN even has a special column called two degrees. One well-known achievement of the Paris Agreement is that not only it stresses the importance of keeping global warming ‘well below 2 °C’, but also pledges to ‘pursue efforts to limit the temperature increase to 1.5 °C’ (Article 2(1)(a) of the Agreement). 2°C has undoubtedly become the symbol of climate negotiations, and moving from 2 to 1.5 °C is considered by many as a major triumph.

But what is the link between 2°C and the successful outcome of COP21? By looking at different arguments supporting the target, Jaeger and Jaeger (2010) have argued that 2°C should be understood as a ‘focal point’ for climate negotiation. The classical scenario from game theory shows that if a group of strangers need to meet in Paris to win a prize without prior communications, it is extremely likely that the group will spontaneously meet under the Eiffel tower. During COP21, world leaders were also flown to Paris, and they united under the common banner of 2°C. The 2-degree target is a consensus already established in the 2009 Copenhagen Accord, and it provides a perfect starting point for climate negotiations.

How did this magical number really contribute to the process of negotiation? It is important to understand that 2°C has evolved beyond its simple role as a focal point and a symbol of climate action. The 2-degree target is deeply entrenched into the analysis of emission pathways and reductions as well as the evaluation of mitigation policy in general. For example, before the Paris talks, the UNFCCC secretariat has published a synthesis report on the aggregated effect of Intended Nationally Determined Contributions (INDCs), which analyses the ‘challenges and opportunities relating to keeping temperature rise below 2°C’. The World Resources Institute has quantified and visualised the ‘carbon budget’ left for the world to stay below the temperature target; it has also summarised different studies that analyse the ‘emission gap’ between INDCs and the 2-degree pathway, showing that current INDCs will still set the world on tract for around 3 degrees warming. Using the 2-degree target as a top-down benchmark to evaluate bottom-up contributions of different countries provides a standardised way of assessing the progress of global climate mitigation, which becomes a powerful quantitative tool to facilitate negotiations.

Recognising the power of this quantitative approach, the EU as the key leader in global climate action has been advocating the importance of having evidence-based and robust mitigation commitments with a dynamic review mechanism. The European Commission has stated clearly in its Communication (COM(2015) 81 final/2) that INDCs and targets should be ‘transparent, quantifiable, and comparable’. While the Paris Agreement does not explicitly require INDCs (now called NDCs in the language of the Agreement) to be based on numerical targets, the Decision of COP21 does mention ‘quantifiable information’ in terms of facilitating ‘clarity, transparency and understanding’ of NDCs (Decision 1/CP.21, paragraph 27). Moreover, a quantitative approach based on the 2-degree target and NDCs not only makes effective implementation and transparency more realistic (Article 13 of the Agreement), but also helps establish the most important feature of the Paris Agreement, the so-called ‘global stocktake’, which will ensure progressive actions through a five-year review mechanism (Article 14).

Therefore, a system consisting of top-down global temperature targets and bottom-up quantifiable NDCs has greatly enhanced the feasibility of reaching a new international treaty on climate change. 2°C provides not only a focal point, but also a set of pragmatic solutions for global climate lawmaking. While there are certainly many other reasons behind the success of COP21 (the consistent leadership of the EU, the political will of China and the US, the strength of French diplomatic network and the skilful chairing of Laurent Fabius, just to name a few), the quantitative approach guided by the 2-degree target have made a significant contribution to the Paris Agreement. It is sometimes argued that controlling climate change requires a ‘new paradigm’ of regulation and governance. Does the use of allegedly ‘universal’ and ‘scientific’ quantitative tools in climate negotiations suggest the rise of a new paradigm of international lawmaking?

As mentioned at the beginning of this article, scholars generally agree that classical multilateral institutions and formal international lawmaking are facing challenges, whereas the world is moving towards an era of ‘informal law’, ‘global governance’ or ‘legal pluralism’. In this context, Davis, Kingsbury and Merry have analysed the use of ‘indicators as a technology of global governance’ (2012). While they focus mainly on ‘indicators’ (sometimes referred more specifically as ‘legal indicators’) that present a collection of systematic rank-ordered data such as UNDP’s Human Development Index or the Doing Business indicators of the World Bank, their argument about the effect of such quantitative indicators on governance is illuminating and relevant to the use of INDCs and the 2-degree target. 2°C is a climate indicator, and as discussed above, it has shaped and constructed a global legal framework. The power of 2°C and quantifiable INDCs in climate lawmaking serve as evidence supporting what Restrepo-Amariles called a ‘mathematical turn’ in law, which can ‘promote a new proceduralisation of law and social values in the context of globalisation’ by using mathematical tools for the construction of legal concepts (2015, pp 14-17). Although the case of the 2-degree target is different from other ‘legal indicators’ and probably unique in its nature, the success of COP21 does show that seemly simple quantitative tools can possess great normative power.

However, unlike the predominant focus on ‘private’ and/or ‘informal’ standards in the literature of legal indicators and legal pluralism, the case of 2°C and the Paris Agreement is particularly intriguing because it seems to revive a rather ‘traditional’ and ‘formal’ form of multilateralism. In short, 2°C makes multilateralism work again. This can be interpreted in two different ways: it may suggest that a mathematic turn has also entered into the realm of formal international treaty-making, which resembles a ‘real’ paradigm shift; it can also mean, on the contrary, that the so-called mathematic turn is merely a subsidiary phenomenon that should ultimately only support formal lawmaking. The truth might be somewhere in between: while an international framework is important, the discussion about whether mitigation commitments should be ‘legally binding’ is considered by Pauwelyn and Andonova as the Paris red herring — the 2-degree target and quantifiable NDCs provide exactly what was needed to escape from the counter-productive debate of formalism. The use of 2°C (now also 1.5°C) together with INDCs represents a pragmatic reflection to the previous stagnation of international lawmaking.

It is still too early to claim that we are entering into a new paradigm of international lawmaking. In any case, the observation of the Paris Agreement alone cannot really support broader theoretical claims, as there are many other factors contributing to the outcomes of COP21. Yet it is clear that the role of quantitative tool in international law is rising, especially in the field of climate change, with 2°C as a prime example.