Prof. Francesca Romanin Jacur International Environmental Law and Sustainable Development, Statale University of Milan.
The Paris Agreement in context
In December 2015 195 States gathered in Paris and adopted an agreement to deal with the main challenges of climate change for the next decades. The core pillars of the agreement cover national measures and international cooperation on mitigation, adaptation and transfer of finance and technology.
After lengthy and cumbersome negotiations lasted more than two decades under the aegis of the United Nations, the Paris Agreement is a delicate balance between the many and often conflicting interests and priorities of all the countries of the world. The Agreement sets the foundations for a long-term strengthened international cooperation which combines, on the one hand, the flexibility necessary to accommodate the great variety of different national circumstances with, on the other hand, the necessity to rely on uniform and commonly accepted rules.
The Paris Agreement consists of a preamble and twenty-nine articles and is found in an Annex to a Decision (Draft Decision -/CP.21) of the Conference of the Parties (CoP) that provides for interpretative and complementary guidelines on its application. As regards its legal nature, the Agreement is an international treaty which will be open for signature by States on the 22nd April 2016 and will entry into force upon ratification by fifty-five States representing 55% of global greenhouse gases emissions production.
The mitigation commitments: the Intended Nationally Determined Contributions (INDCs)
The Paris Agreement aims at holding the increase in the global average temperature “well below” the 2 degrees Celsius above pre-industrial levels, possibly within 1,5 degrees Celsius. To achieve this goal, Parties should peak their emissions as soon as possible and adopt urgent reductions of greenhouse gases according to the best available science (art. 2.1(a) and art. 4).
States committed to adopt at the national level mitigation measures according to their respective priorities and capacities. Thanks to this bottom-up approach which leaves discretion to States in deciding the kind of climate measures that suits them better, 189 States, representing 95 % of global greenhouse gases emissions production already communicated their INDCs. Although today the aggregate amount of these measures is far from what is scientifically required to keep the temperature rise within the 2 or 1.5 degrees Celsius limit, Parties agreed to periodically revise every five years and scale up their mitigation commitments (art. 4.3 and art. 4.9). In order to enhance the credibility and transparency of these measures, States shall also communicate complementary technical and scientifically based information on their climate-related measures.
We find here a core compromise of the Paris Agreement which was necessary to ensure the participation of China and the United States, who always stood against legally binding emission reductions commitments: on the one hand, substantive emission reduction objectives and commitments are voluntary and hence not legally binding, at least at the international level (art. 4.2, second sentence: «Parties shall pursue domestic mitigation measures, with the aim of achieving the objective of such contributions»), on the other hand, there are legally binding international obligations to periodically prepare, communicate and adjourn the INDCs (art. 4.2, first sentence: “Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve”).
Financial and technology transfer
The Paris Agreement envisages reinforced financial commitments of developed countries for mitigation and adaptation initiatives to promote the transition to low-carbon economies in developing States and emerging countries (art. 9.3) and encourages the participation of the private sector (art. 9.9).
Transparency
In order to enhance the transparency and the comparability of the action taken, besides communicating every five years on their mitigation measures, developed States parties shall provide on a biennial basis qualitative and quantitative information on the financial resources transferred. Information provided by States on the mitigation, adaptation and financial measures they undertake both at the domestic and international level shall be clear and scientifically based. The CoP will review the effective implementation of these commitments every five years starting form 2023 in order to evaluate the progress made in the achievement of the assigned objectives (art. 14).
The challenges ahead
In view of the urgency of climate change challenges, it is essential that the Paris Agreement becomes operational and that its commitments are effectively implemented as soon as possible. Hence its timely entry into force is crucial and in this perspective political changes in the United States linked to the presidential elections are worrisome since they call to mind the glooming precedent of the Kyoto Protocol, whose effectiveness has been greatly hampered by the absence of the United States. To overcome at least part of these uncertainties, the Agreement foresees its provisional application and the possibility for States to undertake certain actions before its entry into force. (Draft Decision -/CP.21, par. 106-133).
An assessment
The main achievements of the Paris Agreement are of a procedural nature, in that it envisages duties to periodically communicate the climate related activities adopted at the national and international level, their revision and their evaluation according to common standards decided at the international level on a scientific basis. We should now look at whether States will keep up with the promises made in Paris… and if they will do it on time.
