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The author is reachable at reachsafari@gmail.com. He works at the United Nations High Commissioner for Refugees (UNHCR). However, views expressed herein are not a reflection of the official position, past, present or future, of the United Nations or the United Nations High Commissioner for Refugees.
INTRODUCTION
On 12th December 2015, parties to the United Nations Framework Convention on Climate Change (UNFCCC) achieved the 2015 Paris Agreement. They committed themselves to reinvigorate the global response to global warming by keeping a temperature rise this century below 20 Celsius above pre-industrial levels and limiting the temperature increase even further to 1.50Celsius. They also pledged to strengthen the ability of countries to deal with the impacts of climate change. To realise these ambitious goals, participants identified a need for appropriate financial flows, a new technology framework and an enhanced capacity-building framework, supporting action by developing countries and the most vulnerable countries, in line with their national objectives. However, it is a contentious ambition because of the relationship between emissions and economic growth. This paper explores the history of international legal efforts towards this Agreement, examines the objectives of the 2015 Paris Agreement. Finally, the paper reflects on hopes and challenges towards realising the objectives.
A SHORT HISTORY OF INTERNATIONAL CLIMATE AGREEMENTS
The 2015 Paris Agreement did not happen overnight. In 1988, World Meteorological Organization and the UN Environment Program established the Intergovernmental Panel on Climate Change (IPCC)[1] . They mandated it to supply scientific evidence on the current state of knowledge in global warming and its potential environmental and socio-economic impacts[2]. The panel has since produced the scientific evidence to support international climate negotiations[3] to avoid biases in decision-making.
After establishing the IPCC, the first negotiations began in December 1990 when the UN General Assembly established an intergovernmental committee to negotiate the framework convention on climate change, which led to the adoption of the UNFCCC in May 1992, in New York[4], intending to stabilise the atmospheric greenhouse gas concentrations at a level that would avert hazardous anthropogenic interference with the climate system[5]. In June 1992, the Convention opened for signatures at the Earth Summit in Rio de Janeiro, and, on the 21st of May 1994, the UNFCCC entered into force, with 197 countries having ratified it[6]. These countries are Parties to the Convention, and they meet annually at the COP to “negotiate multilateral responses to climate change[7].”
The UNFCCC embeds many principles, one of which has caused significant disagreement between developed and developing countries, stipulated in Article 3 (1)[8] and emphasises that developed States will take the lead. In 1992, developing countries, mainly in the Global South, worked together during the negotiations of the UNFCCC in order to include this principle, and this cooperation continued through numerous COPs meetings on topics such as financing, capacity building, and targets and timetables[9] to ensure that developed nations discharge their obligations. Unfortunately, the United States has dodged under the Republican Administration. The US complained that international climate agreements are unfair as they overburden developed nations[10].
The first COP took place in April 1995 in Berlin, under the leadership of Angela Merkel, who, at the time, was Germany’s environment minister[11]. The Parties agreed that the “commitments in the Convention were ‘inadequate’ for meeting Convention objectives[12]. As a result, a process that would negotiate more substantial commitments for developed countries, thus, paving the way for the Kyoto Protocol[13] Adopted on the 11th of December 1997 at the COP3; the Kyoto Protocol was the first global GHG emissions reduction treaty[14]. The Protocol entered into force in 2005 after the Russian Federation ratified it[15]. Whether the Kyoto Protocol was a success or a failure does not attract a consensus. Many argued that it was a failure as some of the largest GHG emitters like the United States and China did not participate. While others have argued that it was a success because some countries, such as Germany and New Zealand[16], did meet their targets and the Kyoto Protocol set a precedent for future negotiations such as the Paris Agreement. At the COP21 in Paris, on the 12th of December 2015, the Paris Agreement was adopted. It mobilised all States for a shared cause based on their historical, current and future responsibilities[17]. The Agreement aimed to reinvigorate the global response to the threat of climate change[18].
The first COP took place in April 1995 in Berlin, under the leadership of Angela Merkel, who, at the time, was Germany’s environment minister[19]. The Parties agreed that the “commitments in the Convention were ‘inadequate’ for meeting Convention objectives[20], thus, paving the way for the Kyoto Protocol[21] Adopted on the 11th of December 1997 at the COP3; the Kyoto Protocol was the first global GHG emissions reduction treaty[22]. The Protocol entered into force in 2005 after the Russian Federation ratified it[23].
Whether the Kyoto Protocol was a success or a failure has become a contentious issue. On the one hand, it was a failure as some of the largest GHG emitters like China and the United States withheld their participation. On the other hand, it was a success because some countries, such as Germany and New Zealand[24], did meet their targets and the Kyoto Protocol set a precedent for future negotiations such as the Paris Agreement. At the COP21 in Paris, on the 12th of December 2015, the Paris Agreement was adopted[25]. The Agreement has 195 signatories, and 175 Parties have ratified it[26]. The following section outlines the Agreement’s significant elements.
THE 2015 PARIS AGREEMENT: WHAT ARE ITS KEY ELEMENTS?
The Agreement addresses ten critical areas necessary to combat climate change:
- Temperature levels in a long-term horizon[27]: It seeks to strengthen the global response to global warming. It seeks to stop global temperature increase to well below 2 degrees Celsius while stopping the temperature rise to 1.50
- Global peaking[28]: To achieve this set temperature goal, Parties have resolved to reach global peaking of greenhouse gas emissions as soon as possible, recognising peaking will take longer for developing country.
- The 2015 Paris Agreement is a hybrid of binding and non-binding one. It establishes binding commitments by all Parties to prepare, communicate and maintain a nationally determined contribution (NDC) and to pursue domestic measures to achieve them, communicating NDC since 2023 and every five years[29]. However, it contains some nonbinding provisions. The realisation of a party of NDCs is not legally binding[30]. This nature makes it debatable as to whether the Agreement is binding at all.
- Sinks and reservoirs[31]: The Agreement urges Parties to conserve and enhance, as appropriate, sinks and reservoirs of greenhouse gases as referred to in Article 4, paragraph 1(d) of the Convention, including forests.
- Market and non-market[32]: The Paris Agreement establishes a mechanism to contribute to the mitigation of greenhouse gas emissions, support sustainable development, and define a framework for non-market approaches to sustainable development.
- Adaptation issues[33]: The Agreement establishes a global goal to significantly strengthen national adaptation efforts – enhancing adaptive capacity, strengthening resilience, and reducing vulnerability to climate change through support and international cooperation. It also recognises that adaptation is a global challenge faced by all. Therefore, all Parties should submit and update an adaptation communication periodically on their priorities, implementation and support needs, plans and actions. As a result, developing country Parties will receive enhanced support for adaptation actions.
- Loss and damage issues[34]: The Agreement significantly enhances the Warsaw International Mechanism on Loss and Damage, which will develop approaches to help vulnerable countries cope with the adverse effects of climate change, including extreme weather events and slow-onset events such as sea-level rise. The Agreement now provides a framework for Parties to enhance understanding, action, and support regarding loss and damage.
- International cooperation[35]: The Agreement underscores the obligations of developed countries to support the efforts of developing countries to build clean, climate-resilient futures, while for the first time encouraging voluntary contributions by other Parties. The provision of resources should also aim to achieve a balance between adaptation and mitigation. Accordingly, developed countries commit to submitting suggestive information on required financial or technical support every two years. The Agreement also provides for the Financial Mechanism of the Convention, including the Green Climate Fund (GCF), to serve the Agreement.
- Transparency requirements[36]: The Agreement hinges upon a transparent accounting system to clarify action and support by Parties, with flexibility for their differing capabilities. In addition to reporting information on mitigation, adaptation and support, the Agreement requires that the information submitted by each Party undergoes international review. The Agreement also includes a mechanism that will facilitate implementation, promote compliance in a non-adversarial and nonpunitive manner, and report annually to the COP.
- Global stock-taking considerations[37]: the global stocktake will take place in 2023 and every five years after that, to evaluate collective progress toward meeting the Agreement’s goals comprehensively and facilitatively
THE 2015 PARIS AGREEMENT: HOPES AND CHALLENGES
Under this section, the paper reflects on (1) The USA Attitude towards Climate Change Agreements, (2) The 2015 Paris Agreement and Economic Gains: An Incompatible Choice?, and (3) The 2015 Paris Agreement and International Law.
- The USA Attitude towards Climate Change Agreements: Republican versus Democrat Presidents
Since the adoption of the Kyoto Protocol, there has been consistency in USA Presidents’ attitudes depending on their political Party’s affiliations regarding the Common But Differentiated Responsibilities (CBDR)[38]. Both Republican presidents argued that the agreements mistreated the US. Moreover, President Bush and Trump speeches argued that international climate change agreements are unfair to the US because the US had greater responsibilities than developing countries like China and India[39]. During campaigns, President Trump officially declared that the USA would withdraw from the Paris Climate Agreement[40], claiming that his priority of the well-being of Americans and that it was incompatible with an international agreement to regulate climate change.
In the same vein, Trump has been a strong critic of the previous administration’s climate change policy and has been public about his scepticism of global warming. The results of an investigation by the news and opinion website Vox concluded that between 2011 and 2015, Donald Trump had tweeted climate change denial 115 times[41], yet he also said that he would re-enter the Agreement under new terms that were fairer to the United States[42]. Eventually, political leaders all around the world did not like the news of the withdrawal. The most substantial criticism in Europe came from the leaders of France, Germany and Italy[43]. Canada’s Prime Ministers, Justin Trudeau and Enrique Peña Nieto in Mexico, strongly condemned the decision, each emphasising their own country’s continued commitment to the Agreement[44]. It is consistent with the Republic Presidents Policy on climate change. In fact, in 2001, the United States withdrew from the Kyoto Protocol[45], the world’s first GHG emissions reduction treaty[46]. Christine Todd Whitman, the US Environmental Protection Agency administrator, declared that the Kyoto Protocol was dead, which angered Japan and US allies in Europe[47]. The USA signed the Kyoto Protocol in 1997 (Vice-President Al Gore signed), but they did not ratify it[48].
Meanwhile, the change in presidential administrations altered the US position, with the United States deciding not to pursue ratification and implementation of the Protocol[49]. As with the Paris Agreement, commitment to the Kyoto Protocol was entirely dependent upon the political convictions of the US President. The fact that the US presidents who took office immediately after the Parties had signed the agreements rejected both the Kyoto Protocol and the Paris Climate Agreement, Bush and Trump, means that national leadership on climate issues is inconsistent and unreliable.
This position has been different when USA Presidents came from the Democratic Party. Bill Clinton’s administration signed the Kyoto Protocol, and the Obama administration signed the Paris Climate Agreement. In comparison to Bush and Trump, these two Democratic presidents were not critical of the international system which regulated climate change agreements and legislation. Nevertheless, from the text of their speeches, it is possible to detect a change over time towards increasingly more robust support of international climate agreements. In Bill Clinton’s statement announcing the Kyoto Protocol, although he also lamented that developing countries had lower commitments than the United States, he was unequivocal that international commitments were a good and important step in the right direction and worth a commitment. In the same vein, when Joe Biden became President, he quickly ensured that the USA resumed their partisanship to the 2015 Paris Agreement[50]. However, this remains unpredictable: it is about the political party of the incumbent, not the United States.
- The 2015 Paris Agreement and Economic Gains: An Incompatible Choice?
Before the Paris Agreement, the Kyoto Protocol served as the leading international climate agreement that set binding emission targets for advanced industrialised countries and the European Union. Adopted in 1997, the Protocol advanced the norm of ‘common but differentiated responsibilities, which compelled developed countries to cut GHG emissions, while economies in transition and developing countries did not have a treaty obligation[51]. As a result, these industrialised countries collectively committed to reducing GHG emissions by a global average of five per cent between 2009 and 2012, based on 1990 levels[52]. The Protocol primarily called on countries to reduce emissions domestically and provided parties flexibility in reaching these targets by allowing them to trade carbon credits through market-based mechanisms such as emission trading systems and joint implementation projects[53].
Researchers have reached an agreement regarding the relationship between reducing GHG and economic growth. First, under a scenario in which GHG emissions are doubled based on current levels, the loss to GDP is roughly equal to a year’s growth in the global economy[54]. These estimates suggest that the economic loss from climate change over a century may not be that large. However, the damage is not inconsequential. Since climate change may cause a permanent reduction of welfare, steps to reduce these causes would undoubtedly be justified[55]. Second, many of these estimates also highlight initial benefits for a modest increase in temperature, followed by substantial losses as temperatures continue to increase[56]. These initial benefits occur partly due to the global economy’s output concentration in temperate zones. Modest global warming can reduce heating costs, improve crop yields, and diminish cold-related health problems[57]. However, past a 1.1-degree Celsius increase in global average temperatures, these economic benefits could turn negative. Finally, while GHG emissions per capita are higher in developed countries, the economic impacts of climate change would be more significant for developing countries[58]. Since low-income countries tend to be near tropical areas close to the equator, agricultural output would suffer more from higher temperatures. Developing countries are also less likely to adapt to climate change due to a lack of resources and capable institutions[59].
- The 2015 Paris Agreement and International Law
Global environmental challenges such as pollution, ozone depletion, global warming, and threatened wildlife because of two main reasons: an environmental problem from within a specific state has serious repercussions upon other states; chemicals from factories from the USA have effects on the quality of rains in Guatemala, located in thousands of miles away from the polluting event. Also, no single state can singlehandedly resolve environmental challenges successfully, which requires cooperation between polluting and polluted states. However, it is difficult to determine with accuracy from which state a particular environmental challenge has emanated[60], thus making it challenging to apportion “state responsibility” over its unlawful activities and bring it to account.
This spirit has been underpinning the international environmental regime, including the 2015 Paris Agreement. Unlike the Kyoto Protocol, the Paris Agreement was optimistic because of its essential features. Its aspirational goals to halt the increase in global temperature, with clear evaluation markers since 2023 and every other five years, which is likely to give teeth to the customary international environmental law in terms of its binding nature to the Member States and its effectiveness[61]. International customary law is assessed from the general acceptance by the participants, adherence for a sufficient duration; consistent understanding of the terms and stable enforcement; and a finding of Opinio Juris––evidence that the terms have the power of law[62]. The 2015 Paris Agreement is not likely to reach the general acceptance by all parties due to the hostility of some States such as Australia, Brazil and China, and the inconsistency of the USA. As such, it will be challenging to contribute to customary law.
In addition to the aspirational goals of the Paris Agreement, the subtle form of differentiation between nations is a feature that positions the pact for success. The differentiation is both inclusive and empowering to all participants[63]. The Agreement is facilitated by each state voluntarily committing to reduce its emissions reductions. All states commit to some emissions reduction, but no states are assigned a mandatory reductions target, as they were in Kyoto[64]. The third promising feature of the Paris Agreement is the innovative approach to oversight and enforcement. Compared to the Kyoto Protocol’s mandatory and legally binding emissions reductions, the Paris Agreement takes a less coercive, information-based approach[65]. In other words, the Paris Agreement hopes to use both official and unofficial sources of pressure in its information-based enforcement[66].
CONCLUSION
This paper has explored the precursor to the 2015 Paris Agreement. It is an innovative continuation to Rio de Janeiro Earth Summit (1992), the coming into force for UNFCCC (1994) and the Kyoto Protocol (1997). All these agreements reflect the Common but Differentiated Responsibilities (CBDR). This principle recognises that developed members are the most contributing to climate change, and therefore should take the lead to reduce emissions. However, this principle has consistently angered the USA under the Republican presidency for its perceived unfairness.
The Agreement nevertheless faces some challenges. The 2015 Paris Agreement is partly binding, which makes it partly enforceable, and at the same time, giving each party some latitude to perform their obligations in line with national policies and interests. Briefly, implementation is largely whimsical. The Agreement also faces the hostility of soma parties such as China and Australia, and the unpredictability of the USA policy.
The Agreement also faces challenges related to its effects on economic growth. Drawing from the Kyoto Protocol, researchers have agreed that when GHG emissions are double, the consequent loss equals a year’s growth in the global economy. They also agreed that many of these estimates highlight initial benefits for a modest increase in temperature, followed by substantial losses as temperatures continue to increase. Although, modest global warming can reduce heating costs, improve crop yields, and diminish cold-related health problems. Past a 1.10 Celsius increase in global average temperatures, these economic benefits could turn negative. Finally, while GHG emissions per capita are higher in developed countries, the economic impacts of climate change would be more significant for developing countries. Since low-income countries tend to be near tropical areas close to the equator, agricultural output would suffer more from higher temperatures. Developing countries are also less likely to adapt to climate change due to a lack of resources and capable institutions.
Notwithstanding some challenges, the Paris Agreement was an innovation because of its aspirational goals to halt the increase in global temperature, with clear evaluation markers since 2023 and every other five years, which is likely to give teeth to the customary international. It is also innovative because the subtle form of differentiation between nations is a feature that positions the pact for success. The differentiation is both inclusive and empowering to all participants. Furthermore, the Agreement is an innovative approach to oversight and enforcement. Compared to the Kyoto Protocol’s mandatory and legally binding emissions reductions, the Paris Agreement takes a less coercive, information-based approach. Finally, the Agreement fits into a broader setting decided in 2015, and the Agenda 2030 (Sustainable Development Goals – SDGs).
In a final reflection, however, the Agreement’s success will depend on a host of factors. Its success hinges upon the conviction of party members that it is good business to reduce global warming, in line with SDGs. It also depends on whether it will stimulate long-term economic and political changes for the parties to the UNFCCC by investing increasingly into renewables rather than fossil fuels or climate finance increasing the willingness to improve transparency in climate protection and national policies.
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[5] United Nations, “United Nations Framework Convention on Climate Change,” 1992. Article 2
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[8] It stipulates that “The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.”
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[13] Ibid.
[14] Ibid.
[15] Ibid.
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[17] UNFCCC, “UNFCCC – 25 Years of Effort and Achievement Key Milestones in the Evolution of International Climate Policy.”
[18] United Nations, “2015 Paris Agreement on Climate Change” (United Nations Framework Convention on Climate Change (UNFCCC), 2015), Aarticle 2 (1), https://unfccc.int/sites/default/files/english_paris_agreement.pdf.
[19] UNFCCC, “UNFCCC – 25 Years of Effort and Achievement Key Milestones in the Evolution of International Climate Policy.”
[20] UNFCCC.
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Abate, “Kyoto or Not, Here We Come: The Promise and Perils of the Piecemeal Approach to Climate Change Regulation in the United States,” 770.
[25] UNFCCC, “UNFCCC – 25 Years of Effort and Achievement Key Milestones in the Evolution of International Climate Policy.”
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[28] United Nations, Article 4.
[29] Idem
[30] Center for Climate and Energy Solutions, “Paris Climate Agreement Q&A,” February 10, 2021, https://www.c2es.org/content/paris-climate-agreement-qa/.
[31] 2015 Paris Agreement, Article 5
[32] 2015 Paris Agreement, Article 6
[33] 2015 Paris Agreement, Article 7
[34] 2015 Paris Agrement, Article 8
[35] 2015 Paris Agremement, Aricles 9, 10, 11
[36] 2015 Paris Agreement, Article 13
[37] 2015 Paris Agreement, Article 14
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