Paris Agreement – A Perspective

1) History

The first global response to climate change began in the year November 1988 when World Meteorological Organisation (WMO) and UNEP established Intergovernmental Panel on Climate Change (IPCC); tasked with the object of scientifically identifying the causes of greenhouse emissions and to suggest technological innovation to mitigate the change on account of anthropogenic causes. In November of the following year (1990) IPCC presented its first report attributing emission of greenhouse gases from human activity as the primary cause for climate change, calling for a global treaty to arrest such emission. In May 1992 UN General Assembly established Intergovernmental Negotiating Committee (INC) for drafting Framework Convention on Climate change leading to the adoption of United Nations Framework Convention on Climate Change (UNFCCC) in May 1992 and it came into force on 21st March 1994 upon ratification by 196 countries. Following Conference of Parties (COP) which is the highest decision-making body under UNFCCC, in COP 3 the parties achieved a historic milestone in the adoption of the Kyoto Protocol which came into force on 16th February 2005, which binds developed countries to reduction targets. The first commitment period of protocol started in 2008 and ended in 2012. After that United Nations Climate Change Conference (UNCCC) COP 16 met in Copenhagen in December 2009 to explore emission reduction targets, post first commitment period under the Kyoto Protocol which was to end in 2012. The Copenhagen Conference resulted in the Copenhagen accord. The key elements of accord included long-term climate change of no more than 2 degree Celsius, systems of pledge and review for mitigation commitments and actions both by developed and developing countries. States abandoned Kyoto Protocol architecture in favour of a more flexible approach in Copenhagen. The series of negotiations which began in 2005 established Durban Platform establishing Adhoc working group by decision `q 1/ CP.17 in December 2011, which met fifteen times over next fours years, and articulated the hybrid structure of the new agreement and called on states to submit their intended nationally determined contributions (INDC) well in advance to Paris conference and 2014 Lima Call for Action, which elaborated informational norms for parties INDCs. The ADP produced a draft negotiating text in February 2015. Throughout the year, countries began submitting their INDC and before Paris conference, 180 states had done so. This draft text of agreement after a series of negotiations culminated into Paris Agreement in COP 21 in 2015.

2) Comparison with Kyoto Protocol

The Paris Agreement represents the third phase of the United Nations climate change regime. The first phase ran from 1990-1995 and included the adoption of UNFCCC in 1990-1995. The Second phase concerned the adoption of the Kyoto Protocol and occupied the period between 1995-2005. Kyoto Protocol created a binding obligation of containing emission targets qua only developed nations while altogether excluding developing nations like India which were also major contributors to greenhouse emissions. Article 3 which was novel feature of Kyoto Protocol required countries in Annex I to ensure that greenhouse gases do not exceed the limits defined in Annex A and that countries strictly adhered to reduction commitment in Annex B. It further provided for reducing overall emission of such gases by at least 5 per cent below 1990 levels in the commitment period 2008-2012. Article 7 of the Kyoto Protocol prescribed the target of relative reduction of greenhouse gases with reference to the base year of 1990 or another year as provided in article 5. Therefore Kyoto Protocol sought restoration of position to pre-1990 period and had a definite context and target to achieve which distinctly related to reduction to restore the position ante. The Kyoto Protocol also create a subsidiary body for Scientific and Technological Advice, to which parties shall submit data to establish a level of carbon stocks in 1990, thus the scientific determination of threshold to the year 1990 was created and that was set as a Reference point for reversing greenhouse emission. It provided for comprehensive technical assessment of implementation by parties (article 8) and thus provided a detailed framework towards identification of causes of climate change (article 5), defined reduction targets based on common principle (Article 3 and 4), defined common but differentiated responsibilities of parties, provided financial mechanism for developing countries to control emissions and contained provisions for certification of emission reductions by operational entities (article 12). Thus Kyoto Protocol was very aggressive in its approach and created ambitious targets concerning carbon stocks with pre- 1990 as the reference point.

The Third phase of Climate Change Regime ran from 2009 – 2015. The third phase of climate change started with whether after the first commitment period of Kyoto protocol ending in 2012, whether protocol should be extended with second commitment period or a new agreement be adopted which replaced Kyoto Protocol. The United Nations Climate Change conference that met in between 7 to 9 December 2009 which was attended by 100 countries and about 40,000 people was the largest environmental meeting in history. This led to a Political Agreement in the name of Copenhagen Accord which was negotiated by 28 countries. Copenhagen Accord started the next phase of climate change regime by introducing the system of “pledge and review” by developed and developing countries both and included long term limiting climate change to no more than 2 degree celsius. The seed sown in Copanhagen Conference culminated in the fruit of Paris Agreement after series of conferences between 2009 and 2015. The Paris Agreement aims at holding an increase in global average temperature to below 2 degree Celsius of pre-industrial levels and pursues efforts to limit the temperature increase to 1.5 degree Celsius above pre-industrial levels. It enables countries to declare Nationally Determined Contributions (NDC) of emission reduction and mandatorily requires countries to achieve progression beyond existing NDC while submitting successive nationally determined contributions. It requires countries to communicate NDC every five years following the decision in 1/CP.21; Article 13 and Article 17 imposes a responsibility to account for anthropogenic emissions beyond NDC. The Paris agreement provides a framework for non-market approaches to implement NDC’s through mitigation, adaptation, finance, technology transfer and capacity-building. It builds on the mechanism of global stocktake to enhance NDC’s. Conference of Parties (COP) is the highest decision-making body of Paris agreement charged with implementation and advancing the method of mitigating emission. The Paris agreement was to enter into force on the thirtieth day after at least 55 per cent of total global greenhouse gas emitting countries have deposited their instruments of ratification with the depository.

Firstly, Paris Agreement is a legally binding instrument in contrast to Copenhagen accord which was a political deal, however many of its provision does not have legal force or cannot give rise to a legal obligation and are in essence aspirational. For example, the agreement assumes that NDC’s declared by countries even if implemented will achieve change as envisaged; Secondly, it applies to developing as well as developed countries and in that sense is truly a global treaty as of March 15, 2016, 195 countries had put forward intended nationally determined contributions representing 95 per cent of global emissions; thirdly, it is equal in application of its principles and flexible in approach as it permits countries to determine their own NDC’s; fourthly, it establishes a framework which is not limited by time like Kyoto protocol; fifthly, there is a mechanism provided to review progress and furnish suggestions to achieve the desired reduction in emissions. Besides every five years, COP shall meet and take stock of collective progress with increased targets.

3) Obligation and Binding Force

The supporters of the Paris Agreement opine that it is the only true Convention on the subject which has brought all the countries together on one platform under one framework to achieve the objective of climate change. Others say: The Paris Agreement has moved us backwards from binding burden-sharing agreements to a world where climate policy is reduced to pledge and review. Paris Agreement is flexible, some of the provisions are binding but mostly provisions are non-binding. The efficacy of the whole deal depends on countries “naming and shaming” each other to do better. Article 4 if read along with Article 3 makes it mandatory for the country to declare NDC’s to keep the temperature well below 2 degree Celsius above pre-industrial levels and with an obligation that successive NDC’s after 5 years will show progression. Developed countries will have to give financial support to developing countries and though common but differentiated responsibilities principle is incorporated, developed countries share a greater burden by financing developing countries to incorporate technologies for the reduction of emission. Communication of NDC’s is mandatory and parties shall account for their NDC’s, which means the agreement injects responsibility not to understate NDC’s than that which they can achieve one hand and on the other to hand to prevent countries from declaring NDC’s in a manner to defeat the change which agreement desires to bring about. Though Communication of NDC’s is mandatory the content of NDC’s is not mandatory. States have to submit NDC’s but they are not legally bound by them. Nevertheless, the Paris Agreement appears to be a treaty under the Vienna Convention on Law of Treaty having ratified by 195 countries and understood as requiring compliance of certain mandatory provisions of the agreement. While certain other provisions are non-obligatory and not binding since it does not provide for any consequence of non-compliance and particularly use of the word “may” throughout the Paris Agreement indicates political aspiration without being legally binding. There are no consequences for not meeting the targets declared in NDC’s and hence though it is mandatory to declare, and while technical expert review under article 13 may gauge consideration of the party’s support to achieve target, there doesn’t appear to be any enforcement mechanism and hence NDC’s are not legally binding commitment though party is expected to achieve and make best endeavours to meet targets, Paris agreement is aspirational. The Byrd-Hagel Resolution technically does not apply to Paris, because the emissions targets are not legally binding . Thus, the Paris Agreement at best has a hybrid structure of binding and non-binding provisions. It keeps open certain important issues to mature and evolve through negotiations in future, and though it does not provide a final solution to the problem, it at least holds all nations together in the quest to find a solution while defining the direction in which advancements requires efforts. To this end, it is Aspirational, and to the former, it creates a minimum binding obligation.

4) Shortcomings and Effectiveness

The Paris Agreement replaces with the common principle for determining carbon emission of state party having meaningful correlation to a quantified reduction in greenhouse emission with reference to a base year as in Kyoto protocol, to an unspecified aim of abstract declaration by state party of reducing emission without any mechanism of determining if such declaration of reduction in emission on voluntary basis by a state party brings about any semblance of change in greenhouse gas reduction, or as having any potential to bring about any positive impact on climate. The Paris agreement does not bind its parties to do anything other than report on their progress towards the reduction of global warming and does not introduce a system of enforcement. COP 21 did not result in any legally binding emission reduction commitment by the largest per capita CO2 emitters. The Paris Accord, for now, has moved away from using historic equity consideration as a base for binding country commitments. In a report, Organisation for Economic Cooperation and Development (OECD) finds $62 billion as a contribution to climate finance from private and public sources; however this report is criticized as deeply flawed and overestimating. The Paris Agreement does not provide for a system of accountability and commitment to reduction targets by introducing a system of compensation for loss and damages, it does not make compliance to NDC targets obligatory but aspirational, and does not provide for a system of taxation and technology to reward reduction in emission or a shift from use of fossil fuel towards use of more energy-efficient sources. Even if all currently pledged voluntary INDC’s are fully implemented, global emissions in 2030 would be 12 GtCO2e above its allowance for avoiding a warming of more than 2-degree celsius putting the world on track to a temperature rise of around 3 degrees Celsius by 2100. Besides continuation of carbon emission trading runs a real risk of encouraging dependence on fossil-fuel and delaying the progress required towards containing global warming. Thus Paris Agreement does not contain a recipe to counter global warming and climate change in any meaningful way but has succeeded in bringing on board 195 countries to identify, that reduction of emission is an international obligation though without penal consequences. Paris Agreement thus provides a framework which is expected to mature over coming years as calamities draw people and continents near to each other, for more serious and aggressive commitment to reversing the change on account of Anthropogenic reasons.

Under current pledges, the world will warm by 2.8-degree Celsius by the end of century close to twice the limit they agreed in Paris agreement. The governments are even further from the Paris temperature limit in terms of their real-world action, which would see the temperature rise by 3-degree celsius. It is worrying that governments are not stepping up, and it is irresponsible for countries to announce that they will not update their NDC by 2020. GHG emissions of the top ten emitters equal 60 per cent of net global emissions, and yet the highest emitting states also tend to be among the “least vulnerable to the impacts of climate change, [with] this inequality [holding] is true for both 2010 and 2020, Paris agreement has not been able to address this inequality as the beneficiaries of this climate inequity have few incentives to reduce or halt their GHG emissions meaningfully. The agreement requires reporting of anthropogenic emissions by the creation of national inventory and review of the implementation of NDC’s for action and support; it also comprises a technical expert review for improvement of actions to achieve the object of a convention. It also provides for global stocktake every five years from 2023 to assess progress towards achieving the progress by updating and enhancing NDC’s. The concept of Climate finance introduced by the Paris Agreement is a major enabler and is likely to enhance capacity building in developing countries. It provides for the transparency framework, for implementation of object of this agreement in a non-intrusive, non-punitive, collaborative and facilitative manner with respect to national sovereignty. Ultimately Paris Agreement assimilates non-state actors in the form of the international grouping of cities, regions and businesses. The novel feature of the agreement is the participation of sub-national and local authorities, private sector and civil society organisations in the UNFCCC process

5) U.S. Withdrawal and Effects

The United States have an outsized role in global warming since it is the largest per capita emitter in the world. Between 2005 and 2015 US emissions reduced to 11.5 Percent, largely on account of less carbon-intensive fuels like natural gas . However, as per 2016 recorded emissions, US emitted 4833.1 MT (Metric Megatons) of Co2 accounting for 16 percent of Carbon-di-oxide emission of the world and China topping the number to 9056.8 MT (Metric Megatons) accounting for 29% of total world emissions. The per capita emission of US is 15.1 T (Metric ton) and ranks third highest per capita emitter in the world. India and China though largest emitters at 9056.8 MT and 2076.8 respectively, they being highly populous countries the per capita emission is comparably lower than the US. Thus the opportunity to reduce emission from the US will be significantly higher with the adoption of energy efficiency means. President Donald Trump declared withdrawal of US from obligations under Paris Agreement on June 1, 2016, and on November 4, 2019, they officially submitted papers to do so and withdrawal will come into effect from November 5, 2020. The worlds largest emitter the US, withdrawing from Paris Agreement means that worlds largest emitter will neither be accountable nor will contribute towards reducing its greenhouse emission.

Conclusion

The Paris Agreement as it now stands is flexible and provides a Hybrid Structure to reduce emission. It is hybrid in the sense that state parties can voluntary declare NDC’s however there is no mandatory compliance mandate in the form of enforcement mechanism, but provides for reporting, reviewing and accountability towards declared NDC’s. Much remains to be achieved for climate change as the present standard of lowering of temperature by 2 degree Celsius above the pre-industrial level doesn’t do any good for the climate as temperatures are likely to soar by 2-3 degree Celsius in a short run. The agreement lacks much of the incentives in the form of taxation for technology; it does not contain incentives for advancing and innovating in the development of energy efficiency technology and sharing.

Unless there is alternative to Carbon Fuel and efficient technological advancement in which world invests, mere asking for an obligation to reduce emission at the cost of human and societal welfare will result into a roadblock which cannot be cleared on a pillar of morality or threat, and even with climate change affecting our homes. A robust technological advancement in the energy sector which is equally safe appears to be the answer in addition to efforts to preserve the pristine glory of mother earth by compulsory addition of more carbon sinks, in addition to arresting population growth in highly populated countries like India. Since damage to environment is largely anthropogenic, even technological advancement will not be enough in future and the only solution is to create an obligation to limit population growth. Countries like India have no legislation in containing population explosion which it is experiencing. This has resulted in poverty, exploitation, environment damage, law and justice problems, human rights violation going unpunished etc. Large scale illiteracy and government not having enough resources to serve all its citizen equally has ultimately resulted into maze of overlapping complex problems which are not only economic but result of demography also. There is really no international effort in the direction to formulate convention creating an obligation to contain population growth, with the effect that consumers are outrunning resources on this planet. Humanity’s foot­ print is 21.9 ha/person, while the Earth’s biological capacity is, on average, only 15.7 ha/person, with the ultimate result that there is net environmental degradation and loss. After all earths resources are finite, creating an obligation on states to contain an infinity of new additions to the human race.