Prof. Lisa Benjamin, Lewis & Clark College of Law
As we enter the 2020s, the backdrop of the climate crisis remains grim. Recent scientific reports tell us that global greenhouse gas emissions are increasing, not declining as they need to. Emissions increased by 1.5% in 2017, 2% in 2018 and are anticipated to increase by 0.6% in 2019.[i] While emissions are decreasing too slowly in industrialized countries, they are increasing all too quickly in large developing countries. Despite this increase, per capita emissions in the United States and Europe remain 5-20-fold higher than in China and India,[ii] and a significant number of emissions in developing countries are attributable to the manufacture and production of goods consumed in developed countries.
The window to achieve the Paris Agreement’s goals of limiting mean global temperature increases to well below 2°C above pre-industrial averages, and the aspirational goal of a 1.5°C limited increase, is closing quickly. Scientists are increasingly warning of the catastrophic threats of climate change.[iii] Lack of progress by the world’s governments places vulnerable countries such as small island developing states, as well as vulnerable communities within developing and developed countries, at increased risk.[iv] As the United States recently submitted its official notice to withdraw from the Paris Agreement, questions have been raised about the structural integrity of the agreement, and whether it can withstand these countervailing pressures.
The Paris Agreement is an internationally legally binding treaty, but its provisions contain sophisticated and varying levels of ‘bindingness’. In terms of emissions reductions, parties have legally binding procedural obligations to submit nationally determined contributions (or NDCs) every five years, but the level of emissions contained within those NDCs are “nationally determined” – i.e. up to each party to individually decide based on their national circumstances. In this sense, the Paris Agreement contains binding obligations of conduct, but not of result. The treaty was intentionally structured with this type of “bottom up”, flexible architecture as a result of the previous history of climate treaties.
The UNFCCC, agreed to in 1992, has almost universal participation (including, for now, the United States). As a framework, umbrella treaty it has few specific binding provisions. The ultimate objective of the Treaty (and any related agreements, which would include the Paris Agreement) is to achieve stabilization of greenhouse gas concentrations at a level that would avoid dangerous anthropogenic interference with the climate system.[v] The definition of ‘dangerous interference’ was never fully articulated, and so the global temperature goals in the Paris Agreement of well below 2°C and 1.5°C flesh out this provision.
The objectives of the UNFCCC were to be achieved on the basis of equity, in accordance with common but differentiated responsibilities, and the respective capabilities of the parties. Developed country parties were to take the lead in combating climate change.[vi] These principles were based upon the historical responsibility of developed countries for greenhouse gas emissions, and the acknowledgement that developing countries had fewer financial, technological, and human resources to tackle climate change, as well as high levels of poverty.
With these principles in mind, in 1997 the Parties to the UNFCCC agreed the Kyoto Protocol in order to provide for more specific, binding emission reduction targets. Only developed country parties took on binding emissions reduction targets, which were housed in Annex I of the Protocol. They became known as ‘Annex I parties’ as a result. The Protocol had automatically applicable consequences for breach of the targets, with a robust compliance mechanism. The United States never ratified the Protocol, and a number of parties such as Japan and Canada either left the Protocol or have not ratified its second commitment period for a number of reasons.
As emissions from developing countries rose significantly over the years, and existing parties such as Canada were not on target to reach their Protocol commitments, it was clear that a replacement to the Protocol was needed. The Paris Agreement’s flexible approach to NDCs was considered to be the most politically feasible global solution – it would attract almost universal participation from states (including developing states) and provide for cycles by which parties could increase the ambition of their emissions reductions over time.
Nationally determined contributions are submitted every five years. The initial NDCs were submitted in 2015 and the next round of NDCs are due in 2020. In 2015, it was understood that cumulatively these initial NDCs would not be sufficient to achieve the temperature goals of the Paris Agreement, which is why a system of progressive and cyclical submissions was anticipated. Current NDCs submitted by parties have both conditional and non-conditional targets. For example, a number of developing countries made their emission reduction targets in their NDCs conditional upon receiving adequate levels of climate finance and technical and capacity building. Assuming all initial NDCs were fully implemented, Carbon Action Tracker estimated that global temperature increases would lie between 2.7-3.5°C – far beyond what the Paris Agreement aims for.
There are a number of provisions in the Paris Agreement that anticipate increased ambition in countries’ activities. Article 4 states that NDCs should represent progress over time, and should represent its highest possible ambition. Parties can also adjust their NDC to enhance their level of ambition. Together, these provisions create a strong normative expectation that parties would violate the spirit of the Paris Agreement if they downgraded the ambition in their NDCs.[vii]
But as there are no binding obligations of result in the Paris Agreement (only of conduct), the compliance mechanism in Article 15 has a very narrow mandate – it is designed to be facilitative, transparent, non-punitive, and non-adversarial. The mechanism does not focus on individual country results unless significant and persistent inconsistencies of information are found, and then only with the consent of the party concerned.[viii] The mechanism does have a systemic review function, and provides for consequences such as engaging in a dialogue with parties, providing them with assistance or recommending an action plan.
There are other procedural provisions in the Paris Agreement to keep parties on track, such as an enhanced transparency mechanism to ensure that parties’ processes and targets are transparent.[ix] The transparency provisions are closely associated with the NDCs. For example, under the transparency provisions each party must identify indicators it has selected to track progress towards the implementation and achievement of its NDC.[x]
A Global Stocktake also takes place every five years, interspersed between the NDC cycles. The first Global Stocktake will take place in 2023, and will assess the 2020 NDC cycle. The 2028 Global Stocktake will assess the 2025 NDC cycle, and so on. The 24th COP in Katowice provided more detailed rules on what the Global Stocktake will look like. In the future, it will be a combination of a series of synthesis reports, and a number of high-level technical dialogues examining the output of these reports.
The second round of NDCs are due in 2020, but countries are already falling behind their existing NDC targets. The activities of some countries, such as Russia, Saudi Arabia and the United States, are ‘critically insufficient’, meaning they would lead to a 4°C+ world.[xi] Activities of the UK, EU, Canada, China and Australia are ‘insufficient’, leading to a 3°C+ world. A few parties such as Costa Rica, India, Ethiopia and The Philippines are on track, with 2°C compatible emissions trajectories. Due to increasing global emissions, emissions reductions will have to be steep in order to stay within the Paris Agreement’s global temperature goals. It is anticipated that emissions reductions of approximately 8% per year are required by every country until the end of the century.
According to the withdrawal provisions of the Paris Agreement, the withdrawal of the United States will take effect on 4th November 2020, one day after the US Presidential elections. Should the government change, the United States could re-enter the Paris Agreement easily and relatively quickly. If it does not, the lack of global leadership on climate change by the US could become a drag on other parties’ climate actions and ambitions in the next decade. The 2020s will be a testing time for the Paris Agreement, and as Noah Sachs states, may lead to the Agreement’s breakdown (parties fall short of their commitments) or worse, its breakup as parties withdraw and the agreement collapsing.
The Paris Agreement was designed as a flexible yet durable global agreement for the coming decades, so it has no specified end date. It allows for and incentivizes increased ambition by its parties, yet does not legally require ambition as there was no political will at the time for such an agreement. The provisions of the Paris Agreement remain relevant, but always relied on domestic political will to be effective.
As climate protests around the world gain pace, and extreme weather events continue to escalate in frequency and severity in the developed and developing world, the significant question remains whether that political will be forthcoming in a sufficient and timely enough fashion to avoid catastrophic climate change.
Lisa Benjamin is an Assistant Professor at Lewis & Clark College of Law and a member of the UNFCCC Compliance Committee (Facilitative Branch). Her views do not necessarily reflect those of the UNFCCC Compliance Committee.
 Noah Sachs, “The Paris Agreement in the 2020s: Breakdown or Breakup?” forthcoming, Environmental Law Quarterly 46(1) (2019).
[i] RB Jackson et al., “Persistent fossil fuel growth threatens the Paris Agreement and Planetary Health,” Environmental Research Letters , Vol 14(12) (2019): 1-7.
[iii] William J. Ripple et al., “World Scientists Warning of a Climate Emergency” BioScience, (2019): 1-5.
[iv] Lisa Benjamin, Sara Seck and Meinhard Doelle, “Climate Change, Poverty and Human Rights: An Emergency Without Precedent” The Conversation (4th September 2019) https://theconversation.com/climate-change-poverty-and-human-rights-an-emergency-without-precedent-120396.
[v] Article 2, UNFCCC, UNTS 1771.
[vi] Ibid, Article 3(1).
[vii] Lavanya Rajamani and Jutta Brunnée, “The Legality of Downgrading Nationally Determined Contributions under the Paris Agreement: Lessons from the US Disengagement” Journal of Environmental Law Vol 29 (2017): 537-551.
[viii] FCCC/PA/CMA/2018/3/Add.2, Decision 20/CMA.1, paras 2 and 22(b).
[ix] Paris Agreement, Article 13.
[x] FCCC/CP/2018/L.23 para 65.
[xi] See Carbon Action Tracker at https://climateactiontracker.org/countries/.