The Author, Harsh Dabas, is a Second Year Law Student at University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University.
Recently, the Working Group III of the Inter-Governmental Panel on Climate Change (IPCC) distributed its final draft with governments, highlighting measures and allows governments to verify that the proposed Summary for Policymakers accurately represents the underlying evidence presented in the report. Working Group III is in charge of examining climate change mitigation - responses and solutions to the threat of severe climate change by lowering greenhouse gas emissions and improving sinks for the gases that cause global warming.
The Paris Agreement was signed by 196 Parties at the United Nations Conference on Climate Change, at the COP 21 event, in late 2015 and went into effect the following year. Its objective is to keep Global Warming below 2 degrees Celsius, ideally at 1.5 degrees Celsius, relative to pre-industrial levels.
Climate Change, globally, remains one of the Top issues that continue to place humanity’s future at stake.
How Paris Agreement fares in the Legal Spectrum;
Notably, it is also considered as a Beacon in the multilateral climate change process because it is a legally-binding agreement, unequivocally stated by THE UNFCC, that unites all nations in the fight against Climate Change and adapt to its repercussions.
It differs from its predecessor Kyoto Protocol, which was also a Legally-Binding Agreement, as it focuses on establishing consensus which further allows for voluntary and Nationally Decided Contributions (NDCs). NDCs are essentially each country's attempts to cut national emissions and adapt to climate change implications.
Also, the latter set top-down legally mandated emission reduction objectives (complete with consequences for non-compliance) and included only Developed countries. While, Paris Agreement lays that all countries, wealthy and poor, well-established or emerging, must do their honest share to reduce greenhouse gas emissions.
It is based on the simple premise to achieve its goal, I.e., economic and social transfiguration with the best possible utilization of presently-available technology.
While the Article I set the terms- Convention, Conference of the Parties, Party, Article II sets the basic aim of the Agreement clear, which is stated as-
- This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by:
(a) Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;
(b) Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; and
(c) Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.
Article 4, further, elaborates the goal and states-
- In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.
However, the Article VI takes the spotlight as it paves the way for maximum Cooperation, as it recognizes that certain parties choose voluntary interaction in the fulfillment of their NDCs in order to achieve greater ambition in their mitigation and adaptation efforts, as well as to promote sustainable development and environmental integrity.
Section (2) of Article VI states-
- Parties shall, where engaging on a voluntary basis in cooperative approaches that involve the use of internationally transferred mitigation outcomes towards nationally determined contributions, promote sustainable development and ensure environmental integrity and transparency, including in governance, and shall apply robust accounting to ensure, inter alia, the avoidance of double counting, consistent with guidance adopted by the Conference of the Parties serving as the meeting of the Parties to this Agreement.
This is particularly important, as not all nations may be able to achieve the emission reduction targets at a congruent pace.
Enforcement Gap and the Legal/Not Legal debate plaguing the Paris Agreement;
To begin with, one must take a look at the Article 4.11 of the agreement which provides that a party “may at any time adjust its existing [NDC] with a view to enhancing its level of ambition....”
This clause makes it plain that if a party wants to change its current aim, it should do so in a more ambitious manner. Higher ambition, on the other hand, is not a legal necessity, and Article 4.11 does not prevent a party from modifying its NDC in a different direction than submitted earlier. When the topic of whether a party may change its NDC after it was filed emerged during the Paris Agreement negotiations, many negotiators assumed it was self-evident that they could, given that NDCs are "nationally decided."
Others, on the other hand, thought it was important to emphasize this point, which is why this Article was included. In conclusion, while a downward modification is likely to be met with opposition, it is a legally permissible alternative under the Paris Agreement and this can a potential loophole that can be exploited, if a country decides to change its NDC to a lower level.
As former president of the American Society of International Law, Anne Marie Slaughter wrote in the Project Syndicate:
The international legal gold standard is a treaty, a binding document that can be enforced by courts and arbitration tribunals. Such agreements comprise more than expressions of intent; they contain codified, enforceable rules, along with sanctions for non-compliance. Indeed, they must be ratified by national parliaments, so that they become a part of domestic law.
Even though the United Nations Framework Convention on Climate Change unequivocally stated that Paris Agreement is legally binding; the pact, on the other hand, has very little legal force as there are no penalties for parties who break its terms, such as fees or embargos. For enforcing compliance, there is no international court or governing body in place. This is a deficit which makes the Agreement tricky to enforce and regulate.
The truth is that some aspects of the agreement are legally enforceable while others are not. The text is packed with modal verbs that have varying legal weight - should, shall, may, and so on. The big one is shall; it obligates countries to take that step.
Conclusion
This structure recognizes that norms and expectations are often more successful in motivating robust action than legally binding regulations, which, paradoxically, might result in weaker action as some countries under-estimate their targets for fear of legal liability."
It's crucial to keep in mind that the Paris Agreement isn't the be-all and end-all. It is designed to strengthen countries' efforts over time, implying that the existing commitments are just the beginning of the fight against climate change. The goal of lowering emissions by 2025 or 2030 had to be met first, and this agreement has offered a means to do so. To secure a safer and cleaner world for future generations, we must also limit our individual and local contributions to global warming.
