Framework: The Paris Agreement meets the requirements of a treaty under the Vienna Convention on the Law of Treaties and is part of the United Nations Framework Convention on Climate Change (UNFCCC). This paper examines the status and legal structure of the agreement in international law, sets out the objectives of the Paris Agreement and provides background material leading to the Paris Agreement. It is shown that the agreement supports the objectives of the UFCCC which seeks international cooperation to combat climate change by limiting average global temperature increases and to deal with climate change impacts.
The Agreement is a treaty that melds general principles of traditional and modern international law, employing concepts of hard and soft international law. Binding and non-binding norms are replaced with the objective of cooperation between States whose sovereignty is respected by recognition that States will set their own goals in reducing greenhouse gas emissions.
The UNFCCC and Paris Agreement work together to promote the objective of limiting greenhouse gas emissions. The law of treaties in these instruments is augmented by general principles of international law, unilateral declarations and the gradual development of customary law. It is shown that concepts of rights and obligations relating to climate change create norms that reflect the changing scientific, economic and political realities of States in the twenty-first century. By ratifying the Paris Agreement, States provide definition to the objectives of the UNFCCC and UN protocols dealing with climate change.
The Paris Agreement sets out procedures for States to report their emissions and share information about handling impacts of climate change. The Paris Agreement witnesses the goal of bringing UN member States together to set a benchmark for reduction of emissions of greenhouse gases by using cooperation to achieve this objective. The goal is furthered by employing a method for dispute resolution focusing on negotiation and peaceful methods. The international legal status of the Paris Agreement is that of a binding treaty addressing reduction of greenhouse gas into the atmosphere. Working in conjunction with the UNFCCC, the Paris Agreement provides a model of cooperative international law.
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Structure: This paper examines the structure and legal status of the Paris Agreement on the International plane. It reviews whether the Paris Agreement meets the requirements of a treaty under the Vienna Convention on the Law of Treaties and examines how the agreement fits in the United Nations Framework Convention on Climate Change. It sets out the objectives of the Paris Agreement and provides background material leading to the agreement. It is shown that the agreement supports the objectives of the UNFCC which seeks international cooperation to combat climate change by limiting average global temperature increases and dealing with climate change impacts.
The Paris Agreement is a treaty that melds general principles of traditional with those of modern international law. Binding and non-binding norms are replaced with the objective of cooperation between States whose sovereignty is respected by recognition that States set their own goals for reducing greenhouse gas emissions. The UNFCCC and the Paris Agreement show they work together in promoting the objective of limiting greenhouse gas emissions. The law of treaties in these climate change instruments is augmented by general principles of international law, unilateral declarations and the gradual development of customary law. It is shown that concepts of rights and obligations relating to climate change create norms reflecting the changing scientific, economic and political realities of States in the twenty-first century. By ratifying the Paris Agreement, States provide definition to the objectives of the UNFCCC and UN protocols dealing with climate change. The Paris Agreement sets out procedures for States to report their emissions and share information about handling impacts of climate change. The Paris Agreement has achieved the important goal of bringing UN member States together to set a benchmark for reduction of emissions of greenhouse gases using cooperation. This goal is furthered by employing dispute resolution which focuses on negotiation and peaceful methods. For example, non-cooperation with the Agreement is handled using diplomatic relations and peer pressure by other States.
It is concluded that the international legal status of the Paris Agreement is that of a binding treaty addressing reduction of greenhouse gas into the atmosphere. Working in conjunction with the UNFCCC, the Paris Agreement is a model of cooperative international law.
Background Information leading to the Paris Agreement
The Paris agreement is the result of an international collective process that has been guided by the UN during the twentieth and twenty first centuries to address greenhouse gas emissions. Climate conferences and meetings, under the auspices of the UN, have been taking place since the 1970s. The first world climate conference was held in 1979 in Geneva where specialists met to discuss matters regarding climate variability and the contribution of humans to modification of the climate. Specialists from several disciplines contributed to this conference and set the stage for international engagement by arranging a forum to obtain and share technical information and enter agreements to handle matters raised to deal with greenhouse gas emissions. The meeting recognized that climate change affects the lives of people throughout the world and the need for an international forum where technical information could be shared and agreements on handling climate change fostered.
Additional meetings were held during the 1980s with a second world climate conference in 1990 involving the UN Environmental Protection Committee. While member States did not set specific targets to limit CO2 emissions at this conference, they discussed principles subsequently adopted as part of the UNFCCC to stabilize greenhouse gas emissions. The UN also started treaty negotiations on climate change using the Intergovernmental Negotiating Committee.
At a meeting in Rio de Janeiro in 1992, the UN climate change document was signed by 154 states, including the European Council. This showed the ability of UN member States to cooperate on the issue of climate change. Through the Council of Parties (COP) mechanism, the UN sought models to meet the objective of member States to reduce greenhouse gas emissions. After several attempts, UN member States met this objective at the COP21 meeting where the Paris Agreement was negotiated and signed. This Agreement addresses measures for stabilization of greenhouse gas emissions in the atmosphere in a manner that recognizes other UN and international instruments dealing with universal human rights, general principles of international law and other UN treaties and protocols such as the Kyoto Protocol. An example of recognition of human rights is found in the introductory provision that climate change is a common concern of humankind. Other matters include recognition of the need for equity and that countries should have different responsibilities based on their levels of development and contribution to climate change.
Of importance to climate change concepts addressed in the UN Meetings was that the Intergovernmental Panel on Climate Change (IPCC), the body established to review the state of existing knowledge on environmental, economic and social aspects of climate change, issued its first report in 1990. Following a thorough review of worldwide scientific and technical material, its findings confirmed scientific evidence of climate change. The IPCC published its second and third reports in 1995 and 2001, continuing to provide information on humankind’s impact on climate change and setting up matters for funding and tools for adaptation to climate change. Its fourth report in 2014 indicated,
[i]n most scenarios without additional mitigation efforts…warming is more likely than not to exceed 4 degrees [7degrees F] above pre-industrial levels by 2100. The risks associated with temperatures at or above 4 degrees include substantial species extinction, global and regional food insecurity, consequential constraints on common human activities…
The report indicates the gravity of this warming and its impacts on biodiversity. Also important is its conclusion that there would be limited potential for adaptation.
COP meetings continued to address climate change with notable meetings in Berlin in 1995, Geneva in 1996 and Kyoto, Japan in 1997. At the Kyoto conference, industrialized countries negotiated a protocol which set targets for emission reduction and timetables for this reduction. It is interesting to note that the USA, one of the developed countries, did not sign the protocol. Despite this, the UNFCCC moved forward.
A group of experts devoted to dealing with climate change introduced the Oslo principles in 2015. These principles employ international law, human rights law, environmental law and tort law to address matters associated with climate change. The principles provide concepts and climate change ideas that can be used by governments and judicial bodies for interpretation of legal obligations relating to climate change.
Adoption and Coming into Force of the Paris Agreement and its Structure
The COP21 agreement brought world leaders from diverse backgrounds together in Paris in November and December, 2015 to address climate change. The conference was extended to allow State representatives to come to agreement on the terms to be set for the reduction of greenhouse gas emissions. The decision made is that States will work toward reducing emissions well below 2°C above pre-industrial levels and make efforts to limit the temperature increase to 1.5 °C. The agreement sets out articles on matters to be used to meet this objective.
The address by the President of the US, Barak Obama, illustrates the commitment made by the USA at that time:
In my first inaugural address, I committed this country to the tireless task of combating climate change and protecting this planet for future generations.
Two weeks ago, in Paris, I said before the world that we needed a strong global agreement to accomplish this goal — an enduring agreement that reduces global carbon pollution and sets the world on a course to a low-carbon future.
A few hours ago, we succeeded. We came together around the strong agreement the world needed. We met the moment.
This commitment has not been followed by President Trump, who decided that the US will withdraw from the Paris Agreement. This decision is relevant not only to the loss of one of the countries responsible for high levels of greenhouse gas emissions, but to the failure of a State to respect general principles of international law and customary law. To confuse the situation, in January, 2018, President Trump indicated the possibility of the USA re-entering the Paris Agreement. Questions as to what the USA will do regarding compliance with its obligations under Article 3 of the Agreement made at the COP21 conference are uncertain.
From review of Articles in the Paris Agreement one sees that the agreement is a not a top down agreement which sets standards and targets to be met as was the case in the Kyoto Protocol. In the Paris Agreement, States will set their own objectives to reduce emissions and there are no legally binding enforcement provisions to hold them to these projections. The States set their objectives for greenhouse gas reductions by, what is referred to as, Nationally Determined Contributions (NDC´s). The structure also differs from the Kyoto Protocol in that it is modelled on cooperation rather than the imposition of targets. Concern has been voiced as to the lack of enforcement provisions, however, the lack of such enforcement has been suggested as one of the reasons UN member States have signed the agreement, with 174 States having become parties to the Agreement. As well, one commentator has referred to the enforcement mechanism of the Paris Agreement as being one of peer pressure and cooperation.
Reviewing the Legal Status of the Paris Agreement: Part I
The international law of treaties will be reviewed to show that the Paris Agreement is an international treaty. Review of the terms of Anthony Aust´s book, Modern Treaty Law and Practice, and the Vienna Convention on the Law of Treaties, shows that the Paris Agreement satisfies the definition of a Treaty, as set out in Article 2 (1)(a) of the Vienna Convention on the Law of Treaties, 1969 which indicates a treaty needs to have certain characteristics. A treaty is an international agreement meaning it must have an international character. A treaty is:
- an international agreement concluded between States;in written form;
- governed by international law, whether embodied in a single instrument or in two or more related instruments, and
- whatever its designation.
The instrument adopted by UN State members at the COP21 meeting in Paris in November and December, 2015, using the designation “Paris Agreement, meets the requirement of Article 2(1) of the Vienna Convention. The instrument agreed by COP21 parties was signed by State representatives attending the COP21 meeting with authority to enter agreements on behalf of their respective UN Member States, thus being international juridical persons. Review of the terms of the Paris Agreement show it is a multi-lateral treaty with international scope and character.
The United Nations Depositary Information shows entry into force of the Paris Agreement on 5 October, 2016 when the conditions of Article 21(1) were met. The conditions were,
“this Agreement shall enter into force on the thirtieth day after the date on which at least 55 Parties to the UNFCCC accounting in total for at least an estimated 55 per cent of the total global greenhouse gas emissions have deposited their instruments of ratification, acceptance, approval or accession.”
Controversy has arisen about how to characterize the Paris Agreement. Its Articles range from obligations to directions and suggestions employed to facilitate the party States to reduce greenhouse gas emissions. It does not include enforcement mechanisms. Its provisions allow the States to make their own Nationally Determined Contributions and to have the flexibility to change those contributions. Articles of the Paris Agreement deal with mitigation of and adaptation to climate change impacts but do not impose terms for this mitigation and adaptation.
Review of the material also shows that one must distinguish between the law of treaties under international law as opposed to under the domestic law of States. This distinction is shown in articles written about the Paris Agreement. In his article, “Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement, writer, Stephen Mulligan, explains the distinction:
In the International context, international agreements constitute binding compacts between nations and they create rights and obligations that sovereign states owe to one another under international law. In this regard, international law creates a distinct set of rules governing the way in which sovereign states enter into – and withdraw from- international agreements. Those procedures are intended to apply to all nations, but they may not account for the distinct constitutional and statutory requirements of the domestic law of the United States.
This distinction is also shown to be politically important to the way USA President, Barak Obama entered the Paris Agreement, signing it as an executive decision rather than a decision to enter a treaty. Authority indicates this was necessary given that the law of treaties in the United States would have required him to submit the treaty to Congress and obtain its consent.
Legal academic, Daniel Brodansky, provides a summary of the structure and legal material for the Paris Agreement showing it satisfies the requirement so the Vienna Convention on the Law of Treaties and discusses the provisions of the Paris Agreement containing both binding and non-binding elements. As did Mulligan, he draws the distinction between international treaties and treaties under the domestic law of States. Other articles also confirm the importance of this distinction. It is indicated that the political situation in the United States played a part in the wording used in Articles of the Paris Agreement resulting in certain provisions being nonbinding. In his article, international law academic, David Wirth, indicates the US delegation that negotiated the treaty was overly conservative regarding the treaty language that it agreed to adopt given the power the President had to enter binding obligations.
The wording of Articles of the Paris Agreement can also be explained by changes that have occurred in recent developments in International law. In a review of the book The Making of International Law, by Alan Boyle and Christine Chinkin, Alex Pronto, Legal Officer of the United Nations Office of Legal Affairs, wrote:
It remains a matter of some puzzlement for this writer that, despite the sophistication of contemporary international law, the vague dichotomy between hard and soft law, which has no formal basis in the law, is still frequently resorted to. At its core the distinction is that between written law which is legally binding (hard law) and that which is not. The problem is that the binary nature of the distinction unnecessarily skews the conclusions drawn as to the normative value to be attached to texts falling within the latter category. There is some difficulty in grouping a set of guidelines or best practices developed in a very specific technical context with, for example, the Rio Declaration on Environment and Development, which enjoys a different qualitative nature and significance. To be fair, the authors recognize this implicitly by pointing to the normative content of some soft law texts, albeit while providing little guidance on how to determine the existence of such normative content, or as to the consequences of such differentiation among non-binding texts.
As seen, the Paris Agreement combines both binding and non-binding obligations and in some instances guidelines and directions. How then can one determine the legal effect of this instrument? It does not impose penalties apart from isolation or ostracization by other States. It is based on a model of cooperation and its terms are written to reflect that objective. It creates a new type of international law melding past terms of hard and soft law under the umbrella of cooperation.
What do the Articles of the Paris Agreement tell us?
The introductory provisions to the Paris Agreement show it follows the objectives and principles of the UNFCCC. Thus, it is useful to review the objectives of the UNFCCC which recognize the change in the Earth´s climate and that human activities contributed to increasing concentration of greenhouse gas in the atmosphere. The UNFCCC’s main objective is to set the goal that States reduce their greenhouse gas emissions, but the level of the reduction is not quantified.
The UNFCCC establishes three principles to be addressed, the first, reduction of emissions by States based on differentiated responsibilities of States, the second, establishing intergenerational equality, and the third, adopting a precautionary (subsequently changed to a preventative) approach. The first principle adopted a distinction between Annex I and Annex II countries that was not successful and was readdressed. The overall objective and the other two principles were agreeable to UN State parties. Legal academic, Jorge Vinuales indicates that despite the unsuccessful diplomatic result of COP 15 in Copenhagen, COP21 in Paris took on the challenge of working with the Durban Platform for Enhanced Action adopted by UN Parties in December, 2011. He indicates that while it had been expected this would lead to another protocol or agreement with legal force, he concludes that the Paris Agreement, although not perfect, is more than expected given the history of climate change negotiations.
This paper reviews the introduction and Articles of the Paris Agreement defining objectives, purpose and key provisions of the Paris Agreement. The introduction and Articles show interaction with the UNFCCC as well as other UN Party climate change agreements.
Article 2 of the Paris Agreement sets out its primary objectives. The most important of these is to hold the increase in global temperature to well below 2°C’ above pre-industrial levels and to pursue efforts to limit the increase to 1.5°C’. Additional objectives are adaptation to adverse impacts of climate change, making financial flows consistent with a pathway towards low greenhouse gas emissions and climate resilient development. In addition, the Article indicates that the Agreement will be implemented to reflect equity and differentiated responsibilities.
In support of the main objective regarding global temperature increase, academic Vinuales, indicates the following to be the main Articles of the Paris Agreement: mitigation in Articles 3 to 6, adaptation in Article 7 and loss and damage in Article 8.
Article 3 deals with nationally determined contributions (NDC´s) and indicates all parties are to undertake the specified NDC´s. It is this section that shows the Agreement to be a bottom up agreement where States have the responsibility for establishing their NDCs. Unlike the commitment for States to satisfy their nationally determined contributions, the procedural requirements of the Article are legally binding.
Article 4 is important to understanding the legal structure of the Paris Agreement. The UNFCCC imposes obligations, an important aspect regarding the legal status of the Paris Agreement. Such obligations include those of Article 4, titled Commitments:
All Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall:
Develop, periodically update, publish and make available to the Conference of the Parties, in accordance with Article 12, national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, using comparable methodologies to be agreed upon by the Conference of the Parties;
The Article provides detail as to the manner of achieving the long-term temperature goal set out in Article 2. One provision indicates that each party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. It contains requirements and imposes higher standards for developed countries as set out in provision 4 and provides encouragement for less developed countries and small island developing States to join these efforts in provision 6 with reference to assistance being provided to these States by developed countries. While the Article indicates all parties shall prepare NDCs, it makes distinctions as to the requirements for preparation of the NDC´s based on the size and geographic location and level of development of countries.
Article 4 and the NDC provision are important in setting a basis on which each party’s performance will be assessed. Academic, Lavanya, Rajamani, indicates this will provide information over time which establishes agreement of the parties regarding the Article’s interpretation. She points out the provisions of the Victoria Convention on the Law or Treaties which establishes,
Treaties are to be interpreted in good faith, in accordance with their ordinary meaning, in context, and taking into account their object and purpose (Article 31 (1), Vienna Convention on the Law of Treaties). The object and purpose of the Paris Agreement is to limit temperature increase to ‘well below 2°C’ (Article 2), and NDCs are the vehicle chosen to achieve that end (Article 3).
She also highlights the importance of Article 4, when she writes,
the Paris Agreement sets a firm expectation that Parties’ mitigation NDCs will progress from each five-year cycle of contributions to the next, and that these NDCs will reflect their ‘highest possible ambition’ (Article 4.3, see also Article 3, and preambular recital 4 for elements of ‘progression’). This expectation of ‘progression’ and ‘highest possible ambition’ sets a ‘direction of travel’ for the entire regime. This direction of travel is a critical foundational pillar of the Paris Agreement.
Her analysis has been confirmed by other academics as seen in an article in Live Law by academic, Mohammed Umer. “From Kyoto to Paris: Coming Full Circle of Being Trumped.”
As part of its mitigation regime, Article 5 provides instruction as to sinks and reservoirs of greenhouse gases referred to in Article 4 and Article 6 recognizes parties can choose to follow voluntary cooperation of NDC´s for higher ambition of their NDC´s, setting out methods to be employed.
Adaptation to climate impacts is dealt with in Article 7 which provides guidance to party States to meet this objective. The Article is comprehensive and recognizes adaptation will be country driven. The Article sets out the importance of sharing information and using the resources of specialized organizations and agencies of the United Nations to deal with adaptation employed by a country.
As indicated by Vinuales, the topic of Loss and Damage is dealt with as a separate Article that stands apart from other Articles of the Agreement. Article 8, Loss and Damage provisions, deals with risks associated with climate change impacts and refers to provisions of the Warsaw International Mechanism for Loss and Damage, indicating parties should enhance their knowledge of the Warsaw mechanism. It also indicates those dealing with the Warsaw International Mechanism shall collaborate with existing bodies and expert groups under the Agreement as well as bodies outside the Agreement in handling matters of loss and damage.
Article 9, regarding financial resources, indicates that developed countries shall provide financial resources to assist developing countries to deal with mitigation and adaptation. This is a strong Article tied closely to the UNFCCC as seen in provisions, 1, 8 and 9.
Articles 10 and 11 outline technology and innovation and capacity building. Article 10 emphasizes the importance of technology and innovation for meeting the objectives set by the Paris Agreement and recognizes financial mechanisms play an important part in this equation. It refers to the Technology Mechanism set up under the UNFCCC which is to be applied to the Paris Agreement. Article 11 recognizes that capacity building will be country driven and highlights the enhancement of parties from developing countries.
Article 12 deals with cooperation by the parties to enhance climate change education, training and public awareness. It provides a clear obligation on each party to take on this task.
The important provision of transparency is found in Article 13. This model builds on the transparency framework provisions of the UNFCCC. Provision 7 of the Article sets out information that is to be regularly provided by the parties. The Article is integrated with other articles of the Agreement regarding information to be provided. Provision 5 provides information as to the purpose of this transparency which is to provide a clear understanding of climate change action taken by the parties and tracking of parties NDC´s. Review of the United Nations climate change website provides information regarding the work platform and tracking of a State´s progress under the Agreement.
Article 14 sets up the global stocktake that will periodically review the implementation of the Agreement with respect to its long-term goals. As indicated by Vinuales in his audio presentation, the article provides UN parties an opportunity to view the “forest rather than the trees” when looking at the overall progress of the objectives of the Paris Agreement. The first global stocktake is scheduled for 2023. The transparency objective is further supported by Article 15 which establishes a committee to promote compliance with the Agreement, this committee being required to report annually to the Conference of Parties.
Article 16 determines that the Conference of Parties, the supreme body of the UNFCCC, shall serve as the meeting of the Parties to the Agreement and sets out detailed requirements for operation of the committee, establishing the regulatory body and its duties to parties of the Paris Agreement.
Article 17 indicates that the Secretariat established by the UNFCCC also serves as the secretariat for the Paris Agreement. The Article indicates additional functions for the Paris Agreement will be assigned to the Secretariat.
Article 18 deals with the Subsidiary Body for Technical Advice and the Subsidiary Body for Implementation. Of interest in this Article is that parties to the UNFCCC who are not parties to the Paris Agreement have the right to participate as observers in the proceedings of both bodies.
Articles 19 to 29 provide procedural matters for the Paris Agreement such as functions of subsidiary bodies under the UNFCCC and Paris Agreement, times and means of ratification, requirements for entry into force of the Agreement, amendments under both the UNFCCC and Paris Agreement, application of provisions of the Framework Agreement, voting rights of Parties, that the Secretary-General of the United Nations be the depositary of the Agreement and setting out that no reservations may be made to the Agreement. Procedures for withdrawal from the Paris Agreement are set out in Article 28, these being the procedures the USA will use to leave the Paris Agreement. Article 29 provides the language texts in which the Agreement is deposited.
An important article of the Agreement is for dispute resolution. Article 24 indicates that the provisions of Article 14 of the UNFCCC apply to the Paris Agreement for dispute resolution. Thus, the manner of dispute resolution maintains the cooperative model of the UNFCCC. Article 14 of the UNFCCC indicates:
[i]n the event of a dispute between any two or more Parties concerning the interpretation of the UNFCCC, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.
Thus, it has been left to the parties to employ alternative dispute resolution methods such as negotiation, mediation, arbitration or, alternatively to use litigation to resolve their disputes..
There are numerous academic articles, blogs and commentaries as well as UN information materials on the structure and legal effect of the Paris Agreement since it came into force. Articles reviewed by the author, in addition to UNFCCC material, is provided in the following footnote, and material set out in works cited/bibliography.
It is concluded that the Paris Agreement forms part of a complex climate change regime guided by the UN. The Agreement has been signed by 195 UN State members and is managed by the UN through the UNFCCC process. The objectives of the Paris Agreement supplement the UNFCCC and work in conjunction with other climate change treaties and protocols to seek to reduce greenhouse gas emissions, mitigate emissions and adapt to climate change which have and will occur, impacting humans and the environment.
Reviewing the Legal Status of the Paris Agreement- Other Sources of International Law: Part II
Although the Paris Agreement conforms to the law of treaties and is registered as a UN Treaty, it is also important to recognize its provisions have authority under other sources of law. As indicated by academic Antonio Cassese, in international law there is no hierarchy of sources.
Cassese writes that to become a customary rule, two elements must be satisfied. The first element is a subjective element that a new standard of behaviour is necessary or has already occurred. The second element is an objective element that requires the rule to be well-settled state practice. Cassese also indicates customary rules evolve slowly. The rules are said to crystallize after conflicts have abated and legal awards are made on the issue providing the rule a jural quality.
Support of the UN member States is shown by the number of signatories and parties to the Paris Agreement and State practice will be shown by the parties continuing their practice of cutting greenhouse gas emissions as set out in their NDC´s and similar evidence from other actions in protocols or pursuant to other treaties and the State’s CO2 emission practices. As at January 26, 2018, the United Nations Climate Change Internet site showed 195 UN Member States signed the Agreement and that it has been ratified by 174 States.
Regarding jural quality of the Paris Agreement, review shows negotiation, mediation and arbitration are being used to deal with disputes under the Paris Agreement as envisaged by Article 24. International case law records there have been numerous arbitration and court decisions. Academic, Daniel Bodansky, summarizes court adjudication on matters arising from climate change and provides examples of case law in the area. It is more difficult to locate statistics on mediations and negotiations that have occurred after the implementation of the Paris Agreement. Brodansky concludes that adjudication should be seen as a supplement to negotiation which can more effectively address the concerns of States and their residents. Other articles deal with the role of litigation, alternative dispute resolution and discuss the value of seeking an advisory opinion on climate change from the International Court of Justice.
In reviewing the legal status of the Paris Agreement, one should also look to general principles of international law as a source of International law. As well, as Brodansky indicates, it is important to recognize that international politics plays a role in defining these principles. For example, the international law principle, Pacta Sunt Servanda, (agreements must be kept) is considered to have been disregarded by President Trump when he decided to leave the Paris Agreement. In a joint press release of German Ministers, the following statement was made showing the adherence of international States to this general principle:
Withdrawing from the Paris Agreement is … a political mistake, as it undermines legal certainty at international level. The principle of pacta sunt servanda (agreements must be kept) is intended to ensure security and certainty. This is one of the most important practices followed in international politics. “The land of the free and the home of the brave” is acting contrary to its own principles and thereby setting itself against a worldwide consensus.
Our sound climate policy and our intensive international cooperation with other countries to protect the climate have already forged a strong alliance against the isolationist approach of the new US–United States Administration to climate issues. Major nations such as China, Brazil, India and Russia stand shoulder to shoulder with us, as do the many countries which are particularly hard hit by climate change, such as the African states and the small island states. And let’s not forget that even in America there are a crop of federal states, local administrations and companies who have assumed a pioneering role in climate policy. We all support the Paris Agreement.
We will keep the door open to the United States should it wish to accede to the Agreement again at a later date. Let us not be swayed by the short-sightedness of a single party. The international community must stick together. Climate policy is a policy for peace.
The decision of President Trump to leave the Paris Agreement gave rise to negative responses from the International community. One State representative, however, adopted a different approach. The President of Norway outlined the economic benefits of the Paris Agreement, illustrating the impact of peer pressure on President Trump.
Further general international principles are set out by environmental law specialist, Christina Voigt. Her analysis recognizes general principles codified in the Vienna Convention on the Law of Treaties. She writes:
A treaty is expected to be interpreted in good faith and in accordance with the ordinary meanings of its terms, together with the context, object and purpose of the treaty (VCLT, Article 31). Especially interpretation of the provisions in light of the purpose(s) of the Paris Agreement (Article 2), including amongst other things the global temperature goals, might be an important normative determinant in developing further guidance on various aspects of the Agreement, such as the enhanced transparency framework, the global stock-take or the sustainable development mechanism; the so-called “rule book”. Importantly, all obligations as well as those normative parameters of progression and highest possible ambition need to be seen in the light of the purpose of the Agreement; something that can lead to an inherently dynamic interpretation as science develops further.
Her interpretation of the Articles of the Paris Agreement suggests that the purpose and objectives of States that have signed the Paris Agreement are establishing the normative rules of the Agreement to hold temperatures below 2°C in the twenty-first century. She suggests that States who have signed and ratified the Paris Agreement will set the rules and parameters of the Agreement. It is not clear that the Paris Agreement will meet this normative rule or that such rule has crystallized into customary law given the uncertainty of the objective to hold temperatures below 2°C. It is submitted; however, that the Paris Agreement has served as a catalyst in the development of customary law relating to climate change.
Review of academic and popular literature suggests that the Paris Agreement may be a model for drafting multilateral treaties. As well, it can be argued that it elucidates the norms that have developed in the UNFCCC, International regulatory environmental law. and the customary law relating to environmental matters.
Another principle of International law relevant to the legal status of the Paris Agreement is the concept of a State’s unilateral declarations. The general principles of unilateral declarations are set out by the International Law Commission in its 58th session. International law has expanded to recognize unilateral acts as an accepted doctrine. In its 48th session in 1996, the International Law Commission (ILC) identified unilateral acts as a subject for codification.
A summary of the international law of unilateral declarations is found in Oxford Climate Policy publication which illustrates unilateral declarations may be made by State representatives under the Paris Agreement. Review of this material indicates it is necessary these declarations be clear statements made by State representatives who have authority of their State. In such situation, statements can be legally binding on that person´s State on the international plane. Review of the Articles of the Paris Agreement shows Article 9 may be one area where this may be possible. Thus, where a commitment is made by an authorized representative of a developed state to assist an undeveloped state to meet commitments of mitigation and adaptability, such statement may turn out to be legally binding on the State. Unilateral declarations under Article 3, however, are less likely to apply to a State´s commitment for greenhouse gas reduction given that a State´s NDC´s can be changed,
In addition, when reviewing the legal status of the Paris Agreement in International law, one should consider the special class of rules that are peremptory in nature, jus cogens principles. Material reviewed shows articles suggesting the provisions of the Paris Agreement, when tied with human rights issues, lean toward the jus cogens principle. While this may turn out to be the case should reduction of the level of greenhouse gas in the atmosphere not be kept below 2°C or should methods of adaptation to climate change not be successful, it is not the situation at present as there is insufficient international legal authority to support the objectives of the Paris Agreement as jus cogens law. Review of principle of universal jurisdiction in international law results in the same conclusion. Research shows that although the concept has been raised in relation to climate change, the principle has not yet been applied to climate change or environmental matters.
In summary, based on an examination of the Articles of the Paris Agreement, the UNFCCC and academic commentaries about the Paris Agreement, it is submitted the Agreement evidences how soft law has become a method for creating modern treaties in adopting a holistic approach to international law. Not only does the Paris Agreement supplement the UNFCCC, it provides provisions which recognize human rights, intergenerational equality, and is open to gender and aboriginal custom and the different economic power of States.
The Paris Agreement shows UN member States to have expressed the intention to limit greenhouse gas emissions and seek methods to adapt to the climate change impacts. It is too soon to discuss the global stocktake which will occur in 2023. It is not too soon, however, for States who have ratified or accepted the Agreement to take part in drafting the rule book and sharing scientific and educational material. The legal status of the Paris Agreement as a treaty will not change. That does not mean, however, the treaty will be effective to accomplish its purposes. That will depend on the actions of the States. The jury is out as to whether the USA will be brought back into the Paris Agreement before or after the next Presidential election and whether UN Party States to the Paris Agreement will meet the contributions necessary to achieve the objective of keeping temperatures below 2°C. The UN Climate Change Secretariat is keeping track of this information, as shown in its website.
The Paris Agreement and the US
The fact that the Paris Agreement is a treaty with obligations on signing parties was recognized by President Trump’s administration when the decision was made to use the provisions of Article 28 of the Paris Agreement for the USA to withdraw from the Agreement. It has been calculated that the withdrawal date will be November 4, 2020, one day after the next presidential election.
During the period of withdrawal from the Paris Agreement, the USA is required to report its greenhouse gas emissions. From information gathered, it is shown that some American State governments continue the commitment to lower greenhouse gas emissions as do several major American corporations and cities. In contrast, the President has issued executive orders and federal government agencies have taken steps to advance the use of fossil fuel products. As a result, one must wait to see how the situation in the USA unfolds during the next four years.
President Trump´s comments in January, 2018 about the possibly of the USA returning to the Paris Agreement results in uncertainty as to whether, and how, the USA will address its reporting requirements under the Paris Agreement. Information from the Climate Tracker organization on at November 6th, 2017 as to the status of the USA´s NDC, suggests that the USA will not meet its NDC goals, although reports show that corporations, some American States and American cities are continuing their commitment to the reduction of greenhouse gas emissions.
The Paris Agreement is a multilateral international treaty that falls within the definition of treaties set out in section 2 of the Vienna Conference on Treaties. It acts in conjunction with the UNFCCC and other international instruments dealing with climate change. Following review of the structure and provisions of the Paris agreement, its interaction with the UNFCCC and academic commentary, it is concluded that the international legal status of the Paris Agreement is that of an International treaty that incorporates binding and non-binding elements. The Agreement melds the law of treaties with international law´s general principles, customary law and the law of universal declarations. In doing so, the Paris Agreement provides a cooperative model where UN Member States that are parties to the Paris Agreement can share information, knowledge and financial resources with the objective of reducing greenhouse gas emissions in this century. The Paris Agreement supplements the UNFCCC and other UN treaties and instruments addressing climate change.
The Paris Agreement recognizes modern legal concepts by providing a mixture of hard and soft legal concepts that incorporate political, scientific, social and economic elements so that its State members can cooperate to deal with climate change and its impacts. The importance of this global concern is shown by the speed with which the Paris Agreement was brought into force and illustrates that States can cooperate to achieve an intended purpose, in the present case, to keep temperatures below 2°C in this century.
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