the paris agreement: a new hope? - wordpress.com · 2016-09-28 · legal character of paris...
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Slide 1Slide 1
Dan Bodansky
Sandra Day O’Connor College of Law
Closing the Carbon Cycle
September 28, 2016
The Paris Agreement:A New Hope?
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Slide 2
Paris: An Historic Deal …
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Slide 3
… or a fraud?
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Slide 4
Overview
Historic background
Overview of Paris Agreement
Assessment
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Slide 5
Development of the UN Climate Regime: A Play in Four Acts
Bottom-up
Pledges
1992
Framework
Convention
(UNFCCC)
General
system of
governance
1997
Kyoto
Protocol
Negotiated,
binding
emissions
targets
20112009
Copenhagen Durban
Platform
2015 2020
Paris
Act I
1991-1994Act II
1995-2005
Act III
2005-2012
Act IV
2012-2015
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Slide 6
Evolution of the UN Climate Change Regime
Three core issues– How prescriptive? Top-down or bottom-
up architecture?
• To what extent should Paris Agreement dictate
what countries must do?
– How legal?
• To what extent should Paris Agreement be
legally binding?
– How differentiated?
• How should Paris address differences between
developed and developing countries?
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Slide 7
Act 1UNFCCC
Constitutional: establishes basic system of
governance
Ultimate objective and principles
General obligations to develop national
programs – but no binding emissions
targets
Institutional arrangements
Differentiation: Annex I and non-Annex I
Negotiations began in 1991, finished in
1992
Convention opened for signature at Rio in
1992, entered into force in 1994 – 195
parties
1992
UNFCCC
1997
Kyoto
Protocol
20112009
Copenhagen Durban
Platform
2015 2020
Paris
Act I
1991-1994Act II
1995-2005
Act III
2005-2012
Act IV
2012-2015
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Act IIKyoto
Protocol
Key features:– Internationally-negotiated and -
agreed limits on GHG
emissions
• Market-based architecture
favored by US
– Legally-binding
• Detailed rules, rigorous
accounting, compliance
mechanism
– Strong differentiation: targets
applicable only to developed
countries
Developed countries
Top-down regulatory
approach
Internationally-negotiated,
absolute emissions targets
National policies and
measures
1992
UNFCCC
1997
Kyoto
Protocol
20112009
Copenhagen Durban
Platform
2015 2020
Paris
Act I
1991-1994
Act II
1995-2005Act III
2005-2012
Act IV
2012-2015
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Act III:Copenhagen
/ Cancun
Disappointing in light of high
expectations– Political not legal instrument
But substantively significant– 2°temperature goal
– Emission pledges from > 80
countries
– Transparency regime
– Financial pledges: mobilize
$100 billion/year by 2020
Bottom Up
Approach
International policy
National policies and
measures
1992
UNFCCC
1997
Kyoto
Protocol
20112009
Copenhagen Durban
Platform
2015 2020
Paris
Act I
1991-1994Act II
1995-2005
Act III
2005-2012Act IV
2012-2015
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Slide 10
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Slide 11
Contrasting Kyoto and Copenhagen
KYOTO PROTOCOL
Highly prescriptive:– Top-down architecture:
Internationally-negotiated emission targets & rules
Highly legal– Emissions targets legally
binding
Highly differentiated– Emission targets applied
only to developed countries – free ride for developing countries
COPENHAGEN ACCORD
Non-prescriptive– Bottom-up architecture
– Few international rules
Political not legal
agreement
Some differentiation
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Slide 12
Act IV
o Copenhagen address period up to 2020 --
but what next
o Durban Platform for Enhanced Action
(2011)o Launched new process of negotiations, to be
completed in 2015, to address post-2020 period
o Agreement to be reached by 2015 and
implemented from 2020
o Two key features
o “applicable to all” (in contrast to Kyoto)
o Some kind of “legal force” (in contrast to
Copenhagen)
1992
UNFCCC
1997
Kyoto
Protocol
20112009
Copenhagen Durban
Platform
2015 2020
Paris
Act I
1991-1994Act II
1995-2005
Act III
2005-2012
Act IV
2012-2015
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Slide 13
Act IV: What approach to adopt?
Kyoto
Top-down regulatory
approach
Legally-binding
Firewall between
developed and
developing countries
Copenhagen/Cancun
Bottom-up
Softer law / political
decisions
Greater symmetry,
parallelism
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Slide 14
What is the role of the international climate regime?
Prescriptive model:– Paris Agreement tells states what to do
Contractual model:– Paris agreement memorializes/reflects
what states agree to do
Facilitative/catalytic model– Paris agreement catalyzes, encourages,
reinforces action
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Slide 15
Prescriptive model
Impose obligations that make some countries better off and others worse off: winners and losers
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Slide 16
Prescriptive model
Why would
countries that
would be made
worse off agree?
And is prescriptive
model likely to
produce
compliance?
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Slide 17
Contractual model
Paris Agreement based on reciprocity– States accept commitments in exchange for
commitments by others.
Pareto superior: everyone better off– Integrative/interest-based bargaining: goal is
win-win outcomes – “Getting to Yes”
Contract zone– For negotiations to succeed, there must be a
contract zone, i.e., a set of agreements that leave all participants better off and are acceptable domestically.
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Slide 18
But the negotiations aren’t easy
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Slide 19
Why the contractual model isn’t working
Climate change issue driven by domestic politics
Most countries not willing to do more, in exchange for agreement others
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Slide 20
Facilitative model
States willing to take action on own
Role of international regime– Raises/focuses
attention > catalyzes action
– Transparency focuses soft pressure
– Assistance to enhance capacity
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Slide 21
What is the goal?
Environmental effectiveness is a
function of three variables– Ambition
– Participation
– Compliance
Variables interdependent:– Strengthening ambition does not help if
it leads to less participation and/or
compliance
EE: f(A,P,C)
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Slide 22
Lessons learned
Kyoto: strong legal and technical rigor, but
shrinking participation– 2nd-round targets cover only 13% of global emissions
Copenhagen/Cancún: broad participation but low
ambition– 90+ pledges covering 80+% of emissions fall well short
of 2°C pathway
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Slide 23
Copenhagen/Cancun pledges vs. Kyoto commitments
Source: UNEP Emissions Gap
Report (2013)
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Slide 24
Copenhagen emissions gap
Source: UNEP
Emissions Gap Report
(2010)
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Hybrid Approach
National
Flexibility
International
Rules
Bottom-Up Hybrid Top-Down
Promote participation
Allow experimentation
Risk management >
greater ambition
Promote
transparency and
accountability
Promote reciprocity
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Slide 26
Paris Agreement:Threading the Needle
Hybrid architecture– Bottom-up: Nationally-determined
contributions (NDCs) to promote participation
– International rules to promote ambition and
accountability
Hybrid legal form– Legal agreement, but not all provisions create
obligations
More nuanced, flexible approach to
differentiation
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Slide 27
Paris Agreement: Ambition
Hybrid architecture
Flexibility: nationally determined contributions– By Paris, over 180 – extraordinary, but well short of below-2º
goal
Ambition: multilateral rules, long-term– Temperature goal: hold increase “well below” 2º C.
• also pursue efforts to limit increase to 1.5
– Emissions goal: aim for global peaking asap and zero net
emissions in second half of century
– Global stocktake every 5 years
– Submit NDC every 5 years, informed by global stocktake
– Progression: expectation of greater ambition
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Slide 28
Paris Agreement: Differentiation
By Paris, no one arguing to use the 1992 Annexes;
concept of “nationally determined” emissions targets
accepted
Outcome:
– Most commitments apply to all Parties
– Some soft distinctions between
developed/developing countries in terms of
emission targets
– Existing finance commitments of developed
countries are reaffirmed; enlargement of donor
pool is encouraged– Transparency system: common, with
flexibility for those developing countries
that need it because of capacity
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Slide 29
Why Was Legal Character Such a Big Issue?
Legal character of a particular provision in the Paris
Agreement was the last issue to be resolved: “shall”
vs. “should”
Two main reasons why people cared so much– On the one hand, belief that if Paris legally-binding,
then more credible / effective
– On the other hand, concern that if Paris legally-
binding, that would make it difficult or impossible for
some countries to join
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Slide 30
Legal Character and Effectiveness
Effective of an international agreement a
function of:
– Stringency of commitments
– Breadth of participation
– Level of compliance with commitments
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Slide 31
How Might Legal-Bindingness Strengthen Effectiveness?
Signal of stronger
commitment and
more domestic
buy-in
Domestic legal
effects
International
enforcement
Greater
likelihood of
compliance?
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Slide 32
How Might Legal-Bindingness Weaken Effectiveness?
States worried that
they might not be
able to comply
Domestic
acceptance /
ratification
procedures
Less stringent
commitments
Less
participation?
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Slide 33
Elements of Legal Character
Legal character of Paris Agreement: Is it a
treaty?
Legal character of particular provisions: Are they
legally-binding?
– Legal obligations: “shall”
– Recommendations/exhortations: “should”
Other factors that influence how much norms
influence behavior
– Precision:
• Is it clear what states are supposed to do,
whether they comply
– Oversight: compliance/accountability system:
• Is their credible information to determine
compliance?
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Slide 34
Legal Character of Paris Agreement
The Paris Agreement is a “treaty” within the
meaning of the Vienna Convention on the Law of
Treaties– VCLT defines “treaty” as an agreement in writing
between states governed by international law
– Inclusion of final clauses in Paris Agreement provide
clear evidence that the agreement is a treaty
• Final clauses address issues such as how states
express consent to be bound, entry into force, and
depositary functions.
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Slide 35
Legal Character of Specific Provisions
The Paris agreement includes a mix of legally-
binding and non-legally binding provisions
Issue: Which provisions should be legally-binding?– Nationally-determined contributions
• Procedural obligations to communicate, update, report?
• Substantive obligations to implement or achieve?
– Finance
• New financial obligations?
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Mitigation
Legally-binding elements: Commitments by all parties to:
– Prepare, communicate and maintain NDC
– Pursue domestic mitigation measures
– Provide information necessary for clarity, transparency and
understanding
– Communicate successive NDC every 5 years
– Provide information necessary to track progress in
implementing NDC
Some provisions are non-binding:
– Developed country parties should take the lead by
communicating economy-wide absolute emission reduction
targets
– All parties should strive to formulate and communicate long-
term low emission strategies
NDCs not legally-binding: No obligation to implement/achieve
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Adaptation and Finance
Most provisions are non-binding
– Parties should strengthen cooperation on adaptation
actions
– Parties should submit and periodically update
adaptation communication
– Developed country parties should continue to take
the lead in mobilizing climate finance
– Other parties are encouraged to provide financial
resources voluntarily
Relatively few legally-binding obligations
– Parties shall engage in adaptation planning
processes
– Developed country parties shall provide financial
resources “in continuation of their existing
obligations” under the UNFCCC, and and shall
report biennially
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Slide 38
Oversight
Reporting requirements
International expert review
Multilateral consultative process:
peer review
Implementation and compliance
mechanism
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Slide 39
Assessing ParisGlass Half Full or Half Empty
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Slide 40
Problem-Solving Effectiveness
Glass Half Empty
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Slide 41
Behavioral Effectiveness:Glass Half Full
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Slide 42
Political Effectiveness
Stringency of commitments
Part
icip
ation
/Com
plia
nce
Utopian
Inefficient: Poor
Negotiating
Feasibility constraint,
given political will
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Slide 43
Glass Half Full
Legally-binding (albeit with non-binding elements)
Global: near universal acceptance -- 188 countries have NDCs, ~95 of global emissions
Multilateral rules to promote ambition and accountability
More flexible approach to differentiation
Momentum: other plurilateral, national, sub-national, and non-state initiatives
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Slide 44
Maximizing Effectiveness over Time
Stringency of commitments
Part
icip
ation
/Com
plia
nce
Building political will
over time