Legal obligations of Developing country parties under the Paris Agreement

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 27/01/2016

What are the legal obligations of developing country parties under the Paris Agreement?

Advice:

Under articles 2 and 4, the general objective of the Paris Agreement (“the Agreement”) is to limit the increase in the global average temperature to “well below 2 °C” and to pursue “efforts” to limit the increase to 1.5 °C. This is to be achieved by, firstly, all parties achieving emissions peaking “as soon as possible” (recognising that peaking will take longer for developing country parties) and, secondly, through a transition to a low-carbon global economy “in the second half of this century”. Article 2 of the Agreement also specifies that reaching this objective must “reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances”. Whilst Article 2(2) re-affirms the CBDR-RC principle, the Agreement moves away from the strict binary approach of the Kyoto Protocol towards more nuanced forms of differentiation (including self-differentiation). This is reflected in parties’ commitments: many are common to developed and developing countries, but allow some flexibility to accommodate different national circumstances and capacities.

Article 3 recognizes the need of developing country parties for support in order to achieve the effective implementation of the Agreement. 
Although not listed here (as the advice focuses on developing countries ‘commitments), the Agreement prescribes a number of obligations/commitments for support on developed countries, which will have an impact potentially on those of developing countries (eg. enhanced support for developing country Parties will allow for higher ambition in their actions).

Some provisions in the Agreement are legally binding (expressed as “shall”) on parties whilst others are phrased in aspirational or voluntary terms (such as “should”).  Those provisions that impose commitments on developing countries are listed below, distinguishing those that are mandatory from those that are voluntary.

  1. Mitigation

The Agreement prescribes a limited number of legal obligations on developing country parties. They are as follows:

  • The Agreement commits all parties to prepare, communicate and maintain successive
NDCs; to communicate a new NDC every five years (2020, 2025, etc.); and to provide information necessary for clarity and transparency. Each successive NDC “ will represent a progression” beyond the previous one and reflect the highest possible ambition (Article 4 (2) (3) (8) and (9)).
  • Parties commit to pursue domestic mitigation measures, with the aim of achieving their NDCs’ objectives (Article 4(2))

Comment: the Agreement imposes binding procedural commitments on all parties and obliges them to take measures but does not make implementation or achievement of NDCs a binding obligation.

  • Parties shall account for their NDCs and, in doing so, shall promote environmental integrity, transparency, accuracy, completeness, comparability and consistency, and ensure the avoidance of double counting (Article 4(13)).
  • By virtue of Article 13(7), all parties are required to submit:
    •  a national inventory report of GHG emissions by sources and removals by sinks, prepared using good practice methodologies accepted by the Intergovernmental Panel on Climate Change (IPCC); and
    • Information necessary to track progress made in implementing and achieving NDCs

Comment: these reports are to be submitted at least every 2 years (except in the case of LDCs and SIDs who may do so at their discretion) (COP Decision, para 91). The COP Decision also envisages that developing countries will be given flexibility in the scope, frequency and details of their reporting, and the scope of the review (COP Decision, para 90).

  • Each party commits to participating in a “facilitative, multilateral consideration of progress” in implementing and achieving its NDC (and in relation to efforts on finance) (Article 13 (11)).

Voluntary commitments and further specifics :

  • Developing country parties are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances (Article 4(4)).

Comment: there are different expectations vis a vis developed country parties, who are expected (“should”) to take the lead and undertake absolute economy-wide reduction targets.

  • A party may at any time adjust its existing NDC to enhance its level of ambition (Article 4(11)).
  • The least developed countries (LDCs) and small island developing States (SIDS) may prepare strategies that reflect their special circumstances (Article 4(6)).
  • Over and above their NDCs, all parties should strive to formulate and communicate long-term low greenhouse gas emission development strategies. (Article 4(19)).
  • Under Article 6 of the Agreement, parties may engage in international transfer of mitigation outcomes towards NDCs. If engaging in such transfers, parties are required to avoid ‘double counting (Article 6 (2)).
  • The Agreement also establishes a new market-based mechanism to succeed the KP’s Clean Development Mechanism “to promote the mitigation of greenhouse gas emissions whilst fostering sustainable development “ (Article 6 (4)). Its modalities and procedures will be fleshed out over the coming meetings of the parties.
  • Parties are encouraged to take action to implement and support the existing framework as set out in related guidance and decisions already agreed under the Convention in order to reduce emissions from deforestation and forest degradation (REDD+ framework), including in developing countries, and to conserve and enhance sinks and reservoirs of GHG, including forest (Article 5).
  1. Adaptation

The Agreement envisages only one legal obligation on developing country parties in relation to adaptation :

  • Each party shall, as appropriate, engage in adaptation planning processes and the implementation of actions, incl plans, policies and/or contributions, which may include: the implementation of adaptation actions; the process to formulate and implement NAPs; the assessment of climate change impacts and vulnerability, with a view to formulating prioritized actions; monitoring, evaluating and learning from adaptation plans and actions; and building the resilience of socioeconomic and ecological systems (Article 7(9)).

Comment: note that the phrase “as appropriate” (after shall) allows for an additional degree of  flexibility and weakens the binding character of the norm.

Voluntary commitments/efforts and further specifics:

  • By virtue of Articles 7(10) and 13(8), parties are encouraged to report on their adaptation actions and needs: each party should submit and update periodically an adaptation communication, which may include a national adaptation plan, priorities, implementation and support needs, plans and actions, without creating any additional burden for developing country Parties.

If a communication is submitted, it will be as a component of, or in conjunction with, a national adaptation plan, an NDC and/or a national communication (Article 7(11)).

  • Parties are encouraged to strengthen their cooperation on enhancing action on adaptation, taking into account the Cancun Adaptation Framework (see Article 7(7)).
  1. Finance

Voluntary commitments and further specifics:

  • Whilst the Paris Agreement commits developed country parties to provide finance to developing country parties for mitigation and adaptation, “other parties” are encouraged to provide such support voluntarily (Article 9 (2)).
  • Similarly, in relation to reporting, developing country parties are encouraged to provide information on finance (and technology transfer and capacity-building) support needed and received (Article 13(10)) whilst “other parties” that provide support should also report on support provided (Articles 9 (7) and 13 (9)) and are encouraged to submit, every 2 years, “indicative quantitative and qualitative information” on future support (Article 9 (5)).
  • The provision of financial resources should take into account country-driven strategies and the priorities and needs of developing country parties, especially those that are particularly vulnerable to the adverse effects of climate change and have significant capacity constraints, such as LDCs and SIDS, considering the need for public and grant-based resources for adaptation (Article 9 (4)).
  1. Technology development and transfer

Under Article 10 of the Agreement, the Technology Mechanism established under the Convention shall serve the Paris Agreement. In addition, a technology framework is established to “provide overarching guidance to the work of the Technology Mechanism in promoting enhanced action on technology development and transfer” (Article 10 (4)).

Mandatory obligations include the following:

  • All parties commit to strengthen cooperative action on technology development and transfer (Article 10 (2)).

Comment: Although framed in mandatory language ( “Parties (…) shall strengthen cooperative action on technology …”), thereby reinforcing the general principle of international cooperation in solving international problems, this provision does not create any specific legally binding obligations for individual Parties.

Voluntary commitments:

  • Developing country parties are encouraged to report on technology transfer support needed and received (Article 13 (10)) whilst “other parties” should report on technology transfer support provided (Article 13 (9)).
  1. Capacity-building

Voluntary commitments and further specifics:

  • Under Article 11(3) of the Paris Agreement, all Parties should cooperate to enhance the capacity of developing country Parties to implement this Agreement.
  • Developing country parties are encouraged to report on “progress made in implementing capacity-building plans, policies actions or measures to implement the Paris Agreement (Article 11 (4)) and on capacity-building support needed and received (Article 13 (10)) whilst “other parties” (than developed country parties) providing such support should also report on it (Article 13 (9)).
  • Capacity-building should be country-driven, based on and responsive to national needs, and foster country ownership of Parties, in particular, for developing country Parties, including at the national, subnational and local levels.
  • Capacity-building should be guided by lessons learned, including those from capacity-building activities under the Convention, and should be an effective, iterative process that is participatory, cross-cutting and gender-responsive (Article 11 (2)).
  1. Education

The Agreement envisages the following obligation:

  • Parties shall cooperate in taking measures to enhance climate change education, training, public awareness, public participation and public access to information, recognizing the importance of these steps with respect to enhancing actions under this Agreement (Article 12).

Comment: the same comment to that made for Article 10 (2) applies here: although employing mandatory language, the provision only creates a general expectation on all parties to cooperate, rather than resulting in specific obligations for each party.