What potential entry points are there in the Paris Agreement to reflect the principle of equity? Can you identify relevant provisions in the Paris Agreement and next steps for parties to, for example, ensure we reduce the ambition gap and pressurise countries with very low NDCs to increase ambition in line with equity?
Advice:
In comparison to the UN Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol, the Paris Agreement moves away from the general notion of global equity towards a self-assessment of national capabilities in combating climate change. Nevertheless, equity is still reflected in various provisions of the Paris Agreement (PA) that could be utilised to increase parties’ NDCs. These are, for example:
1. Article 2.2 (in general)
Art.2.2 PA says: “This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capacities, in the light of different national circumstances”. The references to equity and CBDRRC in the PA ought to be treated as that in Art.3.1 UNFCCC. Both provisions provide guidance on how to interpret and implement commitments embedded in the treaty. If anything, the reference to equity and CBDRRC is more forceful in the PA: Art.2.2 uses the term ‘will’ while Art.3.1 UNFCCC says ‘should’. The principles of equity and CBDRRC are meant to guide the implementation of the operational provisions of the PA and the drafting of the related rules. This applies across the board, but it is especially relevant to the operational provisions in the PA concerning mitigation and the global stocktake.
Article 2.2 turns equity into a paradigm for Parties’ action under the PA, thus providing an element of continuity with the UNFCCC. So, very much like that in Art.3.1, the guidance in Art.2.2 is crucial both for Parties’ implementation of the operational provisions in the PA, as well as for the related rule making processes. Therefore, when Parties draft rules for the implementation of the operational provisions of the PA, such rules should be drafted with equity in mind and with a view to engender equitable outcomes. Equally, when Parties implement their obligations under the PA, they should do so with a view to engender and secure equity.
2. Article 4 (mitigation)
This is further reinforced, in the mitigation context, by an express reference to equity in Article 4.1, which articulates the long-term goal for mitigation and sets a timetable for NDC ambition in the light of IPCC assessments of emissions cuts required to meet the long-term temperature goal: “In order to achieve the long-term goal …, Parties aim to reach global peaking of GHG 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 GHG in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.”
This shows that equity is intended not only to underpin the PA in general terms but also specifically to inform national contributions. The Paris regime is designed to ensure that, notwithstanding the nationally determined nature of contributions, the general ‘direction of travel’ is geared towards progression and more ambitious action from Parties. The main tools for achieving this are the cycle of contributions and the global stocktake, as well as the development of long-term low GHG emission development strategies (under Art.4.19).
Art.3 contains a general expectation that the “efforts of Parties will represent a progression over time”. Art.4.3 sets out a similar expectation in relation to mitigation whilst also including an expectation that each Party’s successive NDC will “reflect its highest possible ambition”. Finally, Art.4.11 provides that a Party may at any time adjust its existing NDC with a view to enhancing its level of ambition, thereby seeking to avoid locking in Parties with low levels of ambition.
Arguments to reduce the ambition gap and pressurise countries with very low NDCs to increase ambition in line with equity could be made on the basis of the duty of care and the standard of due diligence associated with Parties’ obligations under Art.4.3.[1] The standard of due diligence requires nothing more nor less than the reasonable measures which a well-administered government could be expected to adopt under similar circumstances.[2]
Art.4.3 requires each Party’s NDC to represent a progression beyond the Party’s then current NDC and reflect its highest possible ambition. This expression implies a duty of care that Parties need to exercise in achieving the goal envisioned in Art.2, according to a due diligence standard. The scope of the standard is determined by each Party’s means and capacities, as well as constraints to their behaviour. In practice this means that every Party ought to employ its highest level of ambition and act according to its best capabilities, in pursuit of the goal envisioned in Art.2 PA.
In the legal literature it has been suggested that this would require defining the highest possible mitigation target that is not disproportionately burdensome or impossible to achieve.[3] Such a target should be comprehensive and based on a thorough assessment of mitigation options in all relevant sectors. Parties would need to deploy all political, legal, socio-economic, financial and institutional capacities and possibilities in defining such target. Moreover, Parties would need to plan their climate strategies holistically and within a long-term time frame.
In their decisions regarding the features and information to facilitate clarity, transparency and understanding of NDCs (paras.26 and 27 of Decision 1/CP.21) the Parties may also provide further guidance on how to assess progression. Whilst the language in Decision 1/CP.21 is not prescriptive (“the information… may include”) it is conceivable that a future CMA decision might make it a mandatory requirement to address specific issues. This could include a requirement as to how Parties consider that their NDC is fair and ambitious, in the light of national circumstances. This would put a certain degree of public pressure on Parties to increase their efforts.
3. Art.6.9 (non-market mechanism)
Developing country Parties have been arguing that, as a result of historic responsibilities, industrialised nations have far-reaching responsibilities under Art.4 UNFCCC to provide additional financial resources, including the transfer of technology. To some extent, this has been acknowledged in Art.9.1 PA (“in continuation of their existing obligations under the Convention”); and they should continue to take the lead in mobilising climate finance (Art.9.3). Overall, however, the provision of finance is framed in broad non-committal terms as part of a global effort from a wide variety of sources through a variety of actions.[4] Proposals for more binding financial arrangements involving the commitment of public funds through, for example, a burden-sharing formula did not make it into the PA’s final version.
A vestige of the attempts to anchor the provision of public funds to support poor countries in their response to climate change in the new agreement is contained in Art.6 paras.8 and 9. The provisions define a “framework for non-market approaches” to promote mitigation and adaptation ambition, enhance public and private sector participation in the implementation of NDCs and “enable opportunities for coordination across instruments and relevant institutional arrangements”. For the time being, functions, scope and purpose of the framework are an open question. A work program, to be developed by the SBSTA and adopted by the CMA, may gradually provide some clarity.[5]
This may also provide an opportunity to insert a variety of global equity and fairness based ideas into the international decision making process. This could include carbon pricing and taxation mechanisms, climate change impact related monetary compensation schemes, trade measures to discourage fossil fuel subsidies or an additional levy on large fossil fuel companies. At the international level, such concepts and approaches could be further developed in collaboration with, for example, the International Maritime Organisation (IMO), International Civil Aviation Organisation (ICAO), or World Trade Organisation (WTO).
4. Article 13 (transparency)
Although the PA does not explicitly mention equity in the transparency context, Art.13.5 states: “The purpose of the framework for transparency of action is to provide a clear understanding of climate change action in the light of the objective of the Convention as set out in Article 2, including clarity and tracking of progress towards achieving Parties’ individual NDCs under Article 4… to inform the global stocktake under Article 14.” It aims to build trust amongst parties, seeks to promote implementation with built-in flexibility taking into account different capacities (Art.13.1). In other words, the transparency framework’s overall objective is to create a fair and impartial process under which Parties’ efforts are open to a certain degree of scrutiny.
In line with the overarching commitment under Art.2.2 (implementation to reflect equity), Parties, therefore, need to use equity as a compass when they negotiate the details for implementation of Art.13 (on transparency of action and support) and similar provisions. As they determine the requirements for and expected activities by different parties they will have to take decisions – either on a case by case basis or in general terms – on how the principles of equity and CBDRRC will be put into practical application (“operationalized”) under the PA.
5. Article 14.1 (stocktake)
The global stocktake is designed to ensure a global oversight of collective progress towards the long-term goals, with equity providing context. Art.14.1 PA states that the COP “shall periodically take stock of the implementation of this Agreement to assess the collective progress towards achieving the purpose of this Agreement and its long-term goals… It shall do so in a comprehensive and facilitative manner, considering mitigation, adaptation and the means of implementation and support, and in the light of equity and the best available science.”
What this means in practice, however, remains to be seen. Presently Parties have made limited progress in devising how the stocktake will operate. But the wording in the PA seems to leave little doubt that the drafters envisioned that, if a shortage exists in the level of ambition, this should be addressed in the light of equity. Helpfully, several assessments of the equity implications of the mitigation commitments or policies of major emitting countries already exist. One of the most widely cited is: www.Paris-equity-check.org. These databases and the related methodologies could be adopted and adjusted by Parties, as they see fit, in the context of the elaboration of rules concerning the global stocktake.
6. Article 24 (dispute settlement)
According to Art.24 PA the dispute settlement clause in Art.14 UNFCCC applies mutatis mutandis. This means that the options for dispute resolution contained in Art.14 UNFCCC are also available for use for disputes under the PA, namely: negotiation or any other peaceful means of dispute resolution followed by compulsory conciliation; and recourse to the ICJ or arbitration, provided that both parties to the dispute have made a declaration accepting either of these two methods of resolving a dispute under the UNFCCC. To date, hardly any Party has made such a declaration.
If Parties disagree about the implications of equity on the interpretation of and compliance with their commitments under the PA, one Party could approach another Party to resolve the dispute through negotiation or other peaceful means. If such efforts fail recourse to conciliation as a dispute settlement default option is provided under Art.14.5 UNFCCC. One party must have first notified the other party that a dispute exists between them. If, after 12 months following the date of this notification, the parties have not been able to resolve their dispute through negotiation or other peaceful means of dispute resolution under Art.14.1, then the party can request for the dispute to be submitted to conciliation.
Conciliation combines fact-finding and mediation. A conciliation commission usually acts as a mediator between both sides, proposing solutions that are mutually acceptable to the parties to the dispute. Its finding are purely recommendatory (Art.14.6 last sentence).
Article 14.6 provides that “a conciliation commission shall be created upon the request of one of the parties to the dispute” and that the “commission shall be comprised of an equal number of members appointed by each party and a chairman chosen jointly by the members appointed by each party”. The use of “shall” in this context indicates that a party to the dispute must appoint a commission member. However, there are no provisions on how to proceed if one of the parties refuses to do so and to further engage with the process. Art.14.7 UNFCCC envisages that “additional procedures relating to conciliation shall be adopted” by the COP in an annex. However, no such procedures have been adopted. In practice this will present a major obstacle to parties seeking to use this mechanism to resolve disputes under the PA. A Party which seeks to submit a dispute to conciliation should, therefore, also push for such conciliation procedures to be adopted by the COP “as soon as practicable”.
In addition, the UNFCCC also envisages the establishment of a multilateral consultative process for the resolution of questions regarding the implementation of the UNFCCC. To date, efforts to set up such a mechanism have failed. Unlike the Kyoto Protocol, the PA does not explicitly refer to the multilateral consultative process on implementation of the UNFCCC. However, since it was adopted to enhance implementation of the UNFCCC such a process – if it was ever established and unless the parties decided otherwise – would also be available for the resolution of questions arising primarily under the Paris Agreement.
[1] See arguments made in C Voigt, The Paris Agreement: What is the standard of conduct for parties? (2016) available at: http://www.qil-qdi.org/paris-agreement-standard-conduct-parties/#_ftn4
[2] AV Freeman, ‘Responsibility of States for Unlawful Acts of their Armed Forces’ (1955-II) 88 Recueil des Cours de l’Academie de Droit International 263, 277-278.
[3] See footnote 1 above.
[4] Paris Agreement Art.9(3).
[5] Decision 1/CP.21 paras 39–40.