The Paris Agreement is a Good Instrument – if 55 States are Able to Ratify it By 2017

An art installation by artist Isaac Cordal in Montreal, 2015. Source: Facebook page

An art installation by artist Isaac Cordal in Montreal, 2015. Source: Cordal’s Facebook page

Watching the live stream of the agreement being adopted in Paris was an emotional moment for all of us. Activists, lawyers, educationists and scientists have all worked tirelessly for the past several years to generate the kind of social pressure and awareness that’s led to 196 countries adopting the Paris Agreement.

There is ample scope to justifiably criticise its specifics. A universal disappointment in the document has been its neglect of human rights and gender justice. However, it must be emphasised that this is a watershed moment in global climate governance simply because negotiators, politicians and civil society actors successfully rallied, debated, compromised and pushed for cooperation – their efforts leading a positive outcome from the Conference of Parties 21, an outcome that had seemed disappointingly unlikely at times, and an outcome which definitely displays the sort of political will required today for affirmative climate action states.

The global media is hailing this as a historic and legally binding climate treaty. It is definitely historic, but it is also debatable – especially the part about it being ‘legally binding’.

According to Article 21 of the agreement, it will enter into force only after a minimum of 55 parties to the United Nations Framework Convention on Climate Change (UNFCCC) have ratified it, “accounting in total for at least an estimated 55 per cent of the total global greenhouse gas emissions”. And Article 20 makes it clear that the ratification process will be from 22 April, 2016, to 21 April, 2017, at the UN headquarters in New York. This is the process by which parties deposit instruments to express their willingness to be bound by an international agreement, and most countries require legislative and executive consent before such ratification.

Legislative action necessary

For example, the country with the maximum per capita CO2 emissions, the United States, requires a two-thirds’ majority vote in the Senate before the president can ratify it. However, if the agreement is completely within the President’s power, he can enter into it in an executive capacity – with the downside being that the ratification can be revoked by future Presidents. Therefore, the fact that the agreement is not a treaty is relevant. A treaty with legally binding reduction-targets would require legislative consent, which the Republican Party in the United States is unlikely to grant, causing the entire effort on part of the Obama administration to be futile.

As of now, that the President is authorised to enter into the agreement and carry out climate commitments by virtue of the Clean Air Act. And the change of the word ‘should’ from earlier drafts to ‘shall’ in Article 4 of the final draft, making it an obligation on parties to set economy-wide targets for cuts, was crucial to safeguarding the agreement from the Senate’s approval.

In India, on the other hand, the President can ratify an international agreement or treaty under Article 73(1)(b) of the Constitution and is not enforceable in a domestic court of law – unless codified as a Statute by the Parliament under Article 253.

Therefore, the ratification process itself is going to involve a complicated set of events till we reach a stage where 55 member states, at accounting for at least 55% of the world’s emissions, have ratified it, in order for it to come into effect at all. And then bind parties thereafter.

Need to showcase ambitions

Now to the treaty itself. The Paris Agreement is not legally binding in the sense that it can’t trigger enforcement through litigation at the International Court of Justice, nor can it incur penalties for non-compliance. However, it is structured in a way that allows parties significant flexibility in achieving their emission targets, and a strong reporting and review mechanism that will help chart progress in an accountable manner.

The treaty aims to limit the increase in the average global temperature to below 2 °C and pursue efforts to limit it to below 1.5° by 2030, although current commitment-pledges submitted by the countries could result in a global average temperature of 2.4°-2.7°. Para 17 of the agreement’s preamble notes this inconsistency as well as the need for further reductions more ambitious than what has already been submitted.

One of the crucial aspects of the Paris Agreement are the intended nationally determined contributions (INDCs), which must be communicated by 2020 and then revised every five years thereafter (as under para 23 of the preamble). Under Article 4, because parties aim to reach global peaking of emissions “as soon as possible”, they are to progressively revise their INDCs consistent with a ratchet mechanism. These successive INDCs must showcase the highest possible ambitions, but while adhering to the principle of common but differentiated responsibilities (CBDRs) and respective capabilities as well.

Under Article 4(13), parties shall account for their INDCs with accuracy and transparency. Thus, this sort for constant review and update mechanism to ensure that parties have increasingly better performance in terms of emission reduction can ensure achievement of the temperature goals set out in Article 2.

Laudable transparency framework

Along with the INDCs, another aspect of the agreement to be lauded is the prospect of a $100-billion commitment to combating climate change. Developed countries party to the agreement have been urged to scale up their financial support and create a roadmap for jointly providing the stipulated amount by 2020, and before 2025, while a new collective goal from a floor of $100 billion per year is to be quantified. Although the terms for the financing are voluntary, the financial mechanism of the agreement could offer much-needed direction and reviews to ensure considerable compliance. Especially because the developed nations have to submit biennial reports on their support to developing countries, whereas developing countries can do so voluntarily.

Even if the agreement does not have penalties in place to deter non-compliance, its transparency framework (defined under Article 13), containing the biennial update reports, will provide a clear picture of the status of adherence to and progress about INDCs and information on the national inventory of anthropogenic emissions and by carbon sinks, and the financial support given to developing nations. Moreover, all submissions under this framework are subject to a Technical Expert Review, which will analyse their authenticity and identify areas for improvement.

Finally, the treaty provides for a “global stocktake” mechanism to assess the implementation of the Paris Agreement in the interest of equity and in light of the latest research reports. The first will be in 2018 at the 24th session of the COP, then a global edition in 2023, and then every five years after that.

An optimistic agreement

With its flexible transparency and financing mechanisms, the agreement as such may seem soft in terms of binding value. However, once parties do ratify the agreement, the reporting and review mechanisms are detailed and subject regularly to such scrutiny that it is believed that the peer pressure of adhering to its terms will suffice to ensure that adherence (much like pressure that led to 189 out of 196 countries submitting their INDCs before the summit).

For India, it provides the opportunity for massive support financially, in terms of capacity-building, and for technology transfer to make the transition to a sustainable energy economy while also allowing it the much needed flexibility in peaking its own emissions. The Paris Agreement, with its insistence on limiting global average temperature below 2º, and encouraging increasingly ambitious targets every five years, is surely an optimistic agreement that seeks to guide international cooperation on climate action.

However, the next step is to ensure that all 196 parties ratify the agreement next year and enact enforceable statutes domestically to ensure that its goals are met. In the meantime, one thing is for sure: the market is about to change.

Mrinalini Shinde is an environmental lawyer at the National Green Tribunal, Pune.