What are the options for reviewing i) currently submitted INDCs and ii) commitments/contributions more generally under the draft Paris Agreement?
What are the legal implications of such options/processes/frameworks/mechanisms/etc?
For the purposes of this advice, the concept of ‘reviewing’ INDCs and other commitments or contributions (‘###s’) is understood to mean a review of the commitment, rather than a review of a party’s progress in meeting that commitment (which the Agreement refers to as ‘accounting’ under Article 3(14)).
The highest-level ‘macro’ review mechanism is the global stocktake established under Article 10. This takes place first in 2024 and happens every five years thereafter unless the governing body of the Agreement (the CMA) decides otherwise. The role of the stocktake is to evaluate the progress of the Parties to meeting the objective in Article 2 of the Convention and the ‘long-term goals’ in the Agreement listed in Article 3(1). The outcome of the stocktake informs the efforts of the Parties. In particular:
- Nationally determined contributions (article 2bis(4))
- Subsequent ###s (article 3(10))
- The overall implementation of commitments on technology transfer (article 7(6))
The Global Stocktake is informed by the framework for transparency of action as to the ‘global aggregate emission and removals’ under Article 9(4)(c). Similarly, the framework for transparency of support information provides the Global Stocktake with information about the aggregate financial support provided under Article 9(5)(b).
Article 3(11) requires Parties to submit an intended ### before finally communicating a ###. This is to allow for a ‘preparatory process’ that takes place in accordance with modalities and procedures adopted by the CMA at its first session. This process will review the ### in light of the long-term temperature goal in Article 2 of the Agreement. This appears not to apply to the first ### that Parties submit, as the modalities and procedures for the facilitative process are to be determined by the CMA at its first session. However, paragraph 20 of the draft decision adopting the Agreement appears to provide for a roughly analogous process.
Several articles and elements of the draft decision establish expectations and constraints in relation to INDCs and ###s, but no provisions impose specific legal consequences for failures to meet those expectations or abide by particular constraints. Insofar as the current draft text implies any sort of consequence for such a failure, it appears to relate to eligibility for support for mitigation efforts.
Articles 6 and 7 do not make financing or technology transfer formally contingent on the consistency of INDCs with a first submission of ###s, if the two differ. The same is true for article 8’s capacity building provisions. Similarly, article 10 describes a process of global stocktaking that will inform rather than enforce, and article 11 elaborates on the mechanism for conducting this stocktake by characterizing it as “non-adversarial and non-punitive” for less developed countries.
Articles 3 (Mitigation) and 9 (Transparency) contain brighter legal lines in relation to developing countries’ INDCs and ###s, but do not specify legal consequences for crossing those lines. Article 3, paragraph 6 anticipates that all Parties’ successive submissions will “represent a progression beyond previous efforts and reflect the highest possible ambition,” but neither this nor other articles specifies a legal consequence for failure to comply. Similarly, article 9, paragraph 1 (option 3), prohibits “backsliding” with respect to both “action and support,” but without specifying consequences for non-compliance.
As for the draft decision, several provisions discuss the consequences of a Party submitting its ###, whether the ### is the same as the INDC submitted in advance of COP21 or a different submission that revises or updates the INDC. Paragraphs 22 and 23 do not specify consequences for particular types of submission, but they instruct a Party not to backslide in its commitments if that Party’s ### is different from its INDC. Notably, those paragraphs also anticipate that parties might update their submissions as the process of implementing accounting guidance reveals that changes to the initial submissions are required. Similarly, paragraph 28 notes that a Party’s first submission will restrict its options for subsequent submissions—for instance, baselines should not be revised and identified emissions sources and sinks should not be excluded without explanation. In the same vein, paragraph 102 contemplates, but does not make legally consequential, an accounting of emissions that will only improve in quality and that will only record increasing ambition and achievement with respect to mitigation efforts.