The Implementation of the Paris Agreement on Climate Change

Vesselin Popovski, Vesselin Popovski

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351815789
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In December 2015, 196 parties to the United Nations Framework Convention on Climate Change (UNFCCC) adopted the Paris Agreement, seen as a decisive landmark for global action to stop human- induced climate change. The Paris Agreement will replace the 1997 Kyoto Protocol which expires in 2020, and it creates legally binding obligations on the parties, based on their own bottom-up voluntary commitments to implement Nationally Determined Contributions (NDCs). The codification of the climate change regime has advanced well, but the implementation of it remains uncertain.

This book focuses on the implementation prospects of the Agreement, which is a challenge for all and will require a fully comprehensive burden- sharing framework. Parties need to meet their own NDCs, but also to finance and transfer technology to others who do not have enough. How equity- based and facilitative the process will be, is of crucial importance. The volume examines a broad range of issues including the lessons that can be learnt from the implementation of previous environmental legal regimes, climate policies at national and sub-national levels and whether the implementation mechanisms in the Paris Agreement are likely to be sufficient.

Written by leading experts and practitioners, the book diagnoses the gaps and lays the ground for future exploration of implementation options. This collection will be of interest to policy-makers, academics, practitioners, students and researchers focusing on climate change governance.

1Implementation of international environmental agreements

Vesselin Popovski

The law is developed through three processes – codification, interpretation and implementation – and these are undertaken by three branches of power: the codification is done by the legislative branch, the parliaments; the interpretation by the judicial branch; and the implementation by the executive branch, the governments. These three processes and powers are clearly established in domestic constitutions, but in international law the picture is different. States negotiate and adopt international treaties, and they also are those who implement these treaties.

Louis Henkin began his book How Nations Behave¹ by asserting that almost all nations observe almost all laws almost all of the times, and he further explained that they do so not simply because of threat of sanctions, but also because they consider implementation to be in their national interests, because they think this is the moral thing to do, because they would like to maintain friendly relations with other states, because they don’t like to be the subject of criticisms, etc. Even when states do not implement international law, this might not necessarily be because of ignorance, malign intentions or bad faith, but because of lack of information or lack of capacity.

The codification of international law has significantly developed over the last century, but such progress has not been paralleled with similar progress in implementation. Various conventions have been adopted to protect human rights, for example, but still millions of people suffer from violations due to disregard of human rights or poor implementation in many states. In another example, the Non-Proliferation Treaty was solemnly adopted in 1968, but its implementation dramatically failed and as a result the number of nuclear powers has doubled, but also the existing five nuclear powers at the time did nothing to reduce and abolish their nuclear weapons. The codification of international humanitarian law has been admirable after World War II with the adoption of the 1948 Genocide Convention, 1949 Geneva Conventions, and its 1977 Additional Protocols, but the implementation has lagged behind and only the establishment of two ad hoc international criminal tribunals and of the International Criminal Court in the last two decades made progress in implementing the international humanitarian law.

One reason for insufficient implementation of international law is the lack of global government and the limited global law enforcement. In domestic law, when crimes happen, the police, the investigation, the prosecution and the courts would normally be capacitated to deal with these violations. But if states violate international law, the only hope is that the UN Security Council will impose sanctions and punish those states. Occasionally the Security Council indeed imposed sanctions, but because of the veto it will never act against one of its five permanent members, nor against a close friend-state of a permanent member. Even when the Security Council is united and imposes sanctions against a state, those sanctions might not be effective to exercise the necessary pressure on that state to co-operate.

Implementation mechanisms are usually discussed in the process of codification and inserted in the text of treaties. These could be either ‘hard’ or ‘soft’ provisions, depending on the mandatory nature of the obligations and on the sanctions envisaged. ‘Hard’ law has developed when states adopted rules and put clear enforcement mechanisms in place to sanction those who will disregard the law. ‘Soft’ law has developed when states felt urgency to adopt rules but were unprepared to put in place sanctioning mechanisms, or when instead of binding commitments they opted for voluntary commitments.

Whether the international law is ‘hard’ or ‘soft’ depends also on which organ imposes it. The resolutions of the General Assembly are considered ‘soft’ and non-binding, because the Assembly does not have enforcement powers. The resolutions of the Security Council are ‘hard’ and binding, as the Council can punish states that do not carry out its decisions.

This book discusses how ‘hard’ or ‘soft’ are the implementation provisions of the 2015 Paris Agreement under the United Nations Framework Convention for Climate Change (UNFCCC). It argues that the Paris Agreement is a result of a pioneering bottom-up approach in international law that allows states to define their nationally determined commitments (NDCs) voluntarily, but once they do, the commitments become legally binding. Instead of ‘Sanctions Committee’ the Agreement creates a much friendlier mechanism – ‘Facilitation Committee’. The hope is that the synergy of ‘hard’ obligations towards long-term goals, being made in a voluntary facilitative manner with the opportunity to readjust goals and targets over periods of time, will bring international consensus and support to address one of the biggest global challenges that humanity has ever faced in history. The goals in the Paris Agreement are clear – to hold the increase in the global average temperature to “well below 2°C above pre-industrial levels”², and the implementation will depend on ensuring transparency, accountability, technological transfers, finance and long-term commitments.

The book follows from a previous co-edited book on ethical values and integrity of the climate regime, edited together with Hugh Breakey and Rowena Maguire,³ who are also authors of chapters in this book. This time the purpose is to analyze the implementation of the 2015 Paris Agreement, an essential task as the targets encapsulated in the Agreement will require a fully comprehensive burden-sharing framework both in legal and ethical obligations and in practical facilitation, unrivalled in importance, and incomparable in challenges to all previous agreements. The Paris Agreement is flexible as it provides for reviews of the commitments every five years, aiming at long-term goals without temporal limits.

Questions and challenges

The questions that this book addresses are: How will Parties be held accountable for their NDCs and how will these be reviewed? Will the implementation facilitation mechanisms in the Paris Agreement be sufficient? What role can the facilitation mechanisms play at national and sub-national levels?

The book diagnoses challenges that the implementation may face, such as lack of commitment from large polluters, lack of capacity in least developed countries, unwillingness to share technology, political instability, inadequate finance, etc. Parties may submit their NDCs, but a question remains as to how will they sustain and implement these commitments. Finance, technical assistance, capacity-building and other support would be of a paramount importance to meet the NDCs. One big challenge is how to satisfy the growing energy needs in developing countries by introducing renewable energy at strategic level. One in five people primarily in rural areas of Africa and South Asia lacks access to electricity. The dominant model of electricity service delivery in these regions remains centralized power generation connected to extensive national grids for transmission and delivery. While this model has worked well for more than a century in developed countries, it has drawbacks which penalize developing countries that are yet to provide access to a large part of their population through extending the grid. The high investment cost involved, combined with the need to deliver the service in a commercially viable way, means economics dictates coverage. With the reduction in the cost of renewable energy technologies and with more efficient end-use appliances, the decentralized renewable energy-based distributed power generation is becoming an increasingly viable option. There are estimates that by 2030, 70% cent of rural areas will be connected either to mini-grid (65%) or stand-alone off-grid solutions (35%).⁴

The challenges to implementation are not only financial, technological or lack-of-political-will. Even when there is sufficient awareness and commitment, governments may lack the capacity to ensure that the public sector will create an enabling environment for investments. The knowledge and political clout to create and enact appropriate regulations and tariffs, that allow bottom-up initiatives to unfold and grow, might be missing. Potential entrepreneurs might be discouraged by bureaucratic processes or lack of resources to provide timely public administration. Public utilities might be heavily indebted, or suffer from mismanagement and corruption.

Literature review

The literature on international environmental law generally, and on climate agreements in particular, has expanded recently. Although much has been written on the negotiations and adoption of the agreements, much less has been written on compliance and implementation of these agreements.

Alexander Zahar in International Climate Change and State Compliance (Routledge, 2014) attempted to fill the gap, probing the inconsistent compliance with the procedural and substantive obligations under the UNFCCC and the Kyoto Protocol. He showed how the international climate regime for only 20 years in existence has developed normative rules, binding on states, but he also explored the feeble consequences of non-compliance. Zahar demonstrated that the state conduct under the climate change law is characterized by generally high compliance in areas where equity is not a major concern, and by contrast, there is low compliance in matters requiring a burden-sharing agreement among states to reduce emissions. In a sober analysis he argued that the substantive climate law presently in place must be further developed through normative rules that bind states individually to top-down mitigation commitments. While a solution to the problem of climate change must take this form, the law development in this direction is likely to be hesitant and slow, predicted Zahar. Another contribution of his book was that it looks not only at individual emission reduction commitments and reporting obligations, but also delved into a deeper range of individual and collective commitments and their interplay under the climate regime to better understand the compliance challenge.

Peter H. Sand and Jonathan B. Wiener questioned whether we are moving “Towards a New International Law of the Atmosphere?”, Goettingen Journal of International Law (2016), Vol. 7, pp. 197–223, reflecting on the inclusion of the item ‘protection of the atmosphere’ in the codification agenda of the International Law Commission (ILC). This is a long overdue recognition that the scope of contemporary international law for the atmosphere extends beyond the traditional disciplines ‘space law’ or ‘air navigation law’. The authors discussed the atmospheric commons, regulated by a ‘regime complex’ comprising a multitude of economic uses, global communications, pollutant emissions and diffusion, in different geographical sectors and vertical zones, in the face of different categories of risks. They assessed the ‘highly restrictive ILC initial understanding’ in 2013 and the reports and debates in 2014–15, and also addressed earlier attempts at identifying crosscutting legal rules and principles by the UN Environment Programme, the International Law Association and the Institut de Droit International.

On the implementation of the 1997 Kyoto Protocol three Norwegian scholars, Olav Stokke, Jon Hovi and Geir Ulfstein, edited the book Implementing the Climate Regime: International Compliance (Routledge, 2005) and described in detail the negotiation leading to the compliance structure, adopted with the 2001 Marrakesh Accords: the Compliance Committee, composed of 20 members, with its Facilitative Branch and Enforcement Branch with ten members each. Because the Kyoto Protocol effectively had binding effect only on industrialized (Annex I) countries, the authors focused mostly on domestic hard enforcement compliance. Interestingly, Russia was the most regular client of the Enforcement Branch, even if it enjoyed large emissions allowances and entered into tonnes of ‘hot air’ trading, because of its weak institutions and different, even conflicting, promises made by the government and by the semi-private company Gazprom (p. 26).

Hans Blix, in an article “Developing International Law and Inducing Compliance” in Columbia Journal of Transnational Law (2002), Vol. 41, no. 1, pp. 12–38, defined that treaties serve as contracts establishing reciprocal inter-state obligations, as constitutions of intergovernmental organizations, or as instruments for codification of global or regional legislation. An interesting practice, creating international legal norms without parallels in domestic law, is the adoption of declarations made by states, bilaterally, regionally or globally within the framework of international organizations. The predilection of governments for making declarations as treaty precursors is understandable – they may want to test their way and stake out broader guidelines in various matters before they bind themselves formally. Supporting a norm as a policy and guiding principle is one thing, committing oneself to every detail is quite another, argued Blix.

Susan Subak wrote “Verifying Compliance with an Unmonitorable Climate Convention” (Centre for Social and Economic Research on the Global Environment, Working Paper, 1995) examining various implementation arrangements, ranging from secretariats collecting reports from parties, to intrusive measures such as surprise on-site inspections carried out by multilateral teams. In the case of the UNFCCC, Subak demonstrated how significant was the investment in development of methodology for reporting, training and participation in reporting, compared to all previous international environmental agreements.

Elizabeth Barratt–Brown in “Building a Monitoring and Compliance Regime of the Montreal Protocol” in Yale Journal of International Law (1991), Vol. 16, pp. 519–552, examined already existing multilateral environmental treaties. The Montreal Protocol on Substances that Deplete the Ozone Layer is one of the first to address a serious global environmental issue, when scientific findings of the reality of ozone depletion shocked the world and set the stage for collective action. Other multilateral treaties referred to by Barratt-Brown are the UN human rights regime, the ILO, and the nuclear non-proliferation regime, the International Atomic Energy Agency. She listed the following factors constructing an effective compliance regime: formation of a governing body, incorporation of NGOs into the compliance, creation of a mechanism to ensure compliance, placing experts on compliance committees and full disclosure and transparency of all reports made by these committees.

The success of the Montreal Protocol is also analyzed by Duncan Brack in “International Trade and the Montreal Protocol” (Royal Institute of International Affairs, 1996). He pointed out that among other non-encouraging stories of international environmental co-operation, the Montreal Protocol stands as a shining light, because of its effective set of procedures and institutions centred around an implementation committee, a well-funded financial mechanism to assist with compliance, and a credible threat of trade sanctions in case of persistent non-compliance. The Montreal Protocol had a successful record in dealing with non-compliance of the transition economies, and, although it faced a major challenge with regard to developing countries, there is reason to believe that it can cope successfully.

Henry Lee edited Shaping National Responses to Global Climate Change: A Post-Rio Guide (Island Press, 1995), revealing methods of designing, implementing and gaining political support – both domestically and internationally – for strategies and policies to reduce emissions of greenhouse gases. The book framed the economic, policy and management trade-offs involved in designing strategies for international agreements, developing and implementing the means to enforce international agreements, comparing alternative policy responses, transferring technology from developed to developing countries, and transitioning to domestic agenda to implement the agreement. The book presented a strategic framework from which specific alternatives can be assessed and compared. One of the chapters in the book, written by Ronald B. Mitchell and Abram Chayes, “Improving Compliance with the Climate Change Treaty” (pp. 115–145), emphasized the need to facilitate compliance, reporting, verification and responses to non-compliances by those actors already predisposed to perform these tasks. Efforts to alter incentives and capacities, the authors argued, are less likely to succeed than efforts to elicit possible co-operation from existing incentives and abilities. Several other processes can and should be set in motion to address the underlying factors inhibiting compliance.

Ronald B. Mitchell together with Edward A. Parson wrote “Implementing the Climate Change Regime’s Clean Development Mechanism”, Journal of Environment and Development (June 2001), Vol. 10, Issue 2, pp. 125–146, and also the chapter “Institutional Aspects of Implementation, Compliance, and Effectiveness” (pp. 221–244) in the book International Relations and Global Climate Change, edited by Urs Luterbacher and Detlef Sprinz (MIT Press, 2001). He evaluated the UNFCCC concerns with effectiveness and raised two institutional design questions: first, how should international institutions be designed to maximize the chances that the regime will achieve agreed-on goals. Second, how should they be designed to allow the regime to assess its progress towards those goals. The nature of the UNFCCC regime, according to Mitchell, highlights several obstacles, common to other international regimes, but also poses several novel institutional challenges.

Clare Briedenich and Daniel Bodansky in the report “Measurement, Reporting and Verification in Post-2012 Climate Agreements” (Pew Center, 2009) addressed the full range of mitigation, adaptation, technology and finance, focusing on the 2012 Bali plan which introduced the measurement, reporting and verification (MRV) of three categories of action: developed country mitigation commitments, developing country mitigation actions, and the provision of support for developing country mitigation actions. Placing MRV as a core element of the climate agreement, the authors argued, depends on parties’ confidence that commitments can be reliably measured, reported and verified. Parties’ experiences to date with reporting and review under the Kyoto Protocol offer insights into the future design of MRV. Credible MRV rests on clearly defined commitments – the more specific the commitment, the more readily appropriate metrics and processes can be established for measuring and verifying the implementation.

David Victor, Kal Raustiala and Eugene Skolnikoff edited Implementation and Effectiveness of International Environmental Commitments (MIT Press, 1998). They defined that implementation translates intent into action, and is vital to effective public policy, especially to international agreements that regulate complex behaviour. The book has two parts, one on international mechanisms for monitoring and systems for implementation review, and another on national implementation. The authors presented their three-year research project with 14 case studies, examining how international commitments are implemented at the international and national levels, analyzing both national and international mechanisms for monitoring and reviewing implementation. They ended with a sceptical conclusion that, given the many complexities of implementing international environmental commitments, it is impossible to draw any systematic conclusions about the implementation process and the ways to enhance implementation.

Oliver Meier and Clare Tenner in “Non-Governmental Monitoring of International Agreements”, Verification Yearbook (2001), VERTIC, pp. 209–227, described the explicit verification provisions in the multilateral environmental agreements, such as the Montreal Protocol and the Kyoto Protocol. They showed new verification techn...