The Paris Agreement and the Rule of Law
28 October 2021
By Christoph Schwarte, Executive Director, Legal Response International
As part of the rule of law in international relations, states need to abide by all their obligations under international law and seek to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. Where states have made commitments or accepted certain responsibilities under an international treaty such as the Paris Agreement - which aims to guide the international community’s response to climate change for years to come - the resulting expectation is therefore two-fold: their own conduct needs to be in line with the treaty, but they should also help to create the wider enabling environment that can effectively respond to the adverse effects of climate change and support the goals of the Paris Agreement.
The Paris Agreement was adopted in 2015 and entered into force in 2016. As a result, there is limited experience of parties’ compliance with the new treaty. Before the US withdrew from the Agreement under Article 28 they briefly considered downgrading their nationally determined contribution (NDC – formal submissions where parties mainly indicate their emission reduction and mitigation commitments). This is despite the fact that the Paris Agreement says that each successive NDC should “represent a progression” (Art.4.3), and adjustments be done “with a view to enhancing [a party’s] level of ambition” (Art.4.11). Notwithstanding those provisions, by modifying the methodology and relevant reference points (the baseline) for their mitigation target, Brazil has effectively lowered its overall ambition in an update to its first NDC. All parties to the Paris Agreement were requested to submit a new or updated NDC by the end of 2020 but not even half of them met that deadline. A more fundamental compliance issue would be whether parties’ mitigation pledges really reflect their “highest possible ambition” (Art.4.3). The architecture of the Paris Agreement leaves this assessment to each individual party and there is no higher authority or independent body to determine the adequacy and fairness of a commitment.
Another compliance issue that has received little attention to date concerns the joint NDC of the European Union and its member states. The Paris Agreement (in Art.4.16) specifically provides that parties which have reached agreement on a joint NDC “shall notify the secretariat of the terms of that agreement, including the emission level allocated to each Party within the relevant time period”. Each EU member state is severally and jointly liable with the EU for its individual emission levels (Art.4.18). As part of the European Green Deal, the EU has increased its emission reduction target from at least 40% to 55% by 2030 in comparison to 1990 levels. A corresponding update to the NDC was submitted on 17 December 2020. The European Commission has tabled proposals for amending the relevant EU legislation (e.g. on the EU Emission Trading Scheme and the Effort-Sharing Regulation) in light of the new target. But because EU Members States are still negotiating, the bloc has not been able to notify the UNFCCC secretariat of the terms of an agreement, including Member States’ individual emission levels.
So while the EU is generally perceived as a leader in international efforts to tackle climate change and in July 2021 announced further far-reaching plans to decarbonise its economy, for the time being it is actually non-compliant with a formal, largely procedural obligation under the Paris Agreement. But as long as the EU and its Member States try their best to meet the collective target – does the missing notification matter? I think it does. As with many other multilateral environmental agreements (MEAs) the Paris Agreement is built around procedural commitments (as opposed to specific substantive outcomes). For the Agreement to succeed, parties will have to take these requirements seriously, in particular those that contain a clear obligation of conduct (“shall”). The requirement to inform others about individual emission levels ensures a degree of clarity, transparency and accountability in case an agreement to act jointly, for example, fails or is prematurely terminated. Non-compliance could weaken the Agreement’s ability to function effectively and undermine trust in a system one may be highly critical of but which is pretty much the only “game in town” at the intergovernmental level. And while currently only the EU has a joint NDC, other parties or economic integration organisations may follow their example. The current situation risks setting a precedent for the Agreement’s future implementation and resulting in different interpretations of parties’ obligations and legal uncertainties.
But there may also be another reason why it matters. States’ compliance with international law to a large extent depends on mutual respect, good will, peer pressure, fairness and the wider dynamics created by a treaty regime. International negotiations are often more about gestures, face-saving and posturing then the immediate outcomes. So by ignoring their own failure to notify the UNFCCC secretariat of Member States’ emission levels, the EU may be wasting an important opportunity to strengthen the Paris system, lead by good example and rekindle some of the lost trust between parties in the international climate negotiations. Tackling the issue head on (and maybe reporting the issue to the new committee for facilitating implementation and compliance with the Paris Agreement) may create a whole new momentum of solidarity and for “doing things differently” - something all governments have promised to do at some point during the COVID-19 pandemic.
”Solidarity” is also where the second component of the rule of law in international relations comes into play. The planet is in a state of emergency that already affects or immediately threatens human rights, biodiversity, and the territorial integrity of many states. To avoid a complete “climate break down” and establish conditions under which low carbon development, human rights, and justice can be maintained everywhere, the international community has to pursue the three complementary goals of the Paris Agreement (mitigation, adaptation, and finance flows) in a much more holistic and collaborative manner. Important opportunities – for example to anchor the responsibility for human rights’ violations regardless of jurisdiction in the Paris Agreement – have already been missed and providing climate finance as part of charitable giving (without acknowledging legal liability) is simply not enough to create the fundamental change needed.
Climate Change and the Rule of Law
The Climate Change and the Rule of Law blog invites contributors to reflect on emerging issues and relations between climate change and rule of law.