Is the Paris Agreement Historic?

by Daniel Bodansky

Paris

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He is in Paris for the climate change negotiations. This is the sixth in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

COP-21 adopted the Paris Agreement (.pdf) at around 7:30 pm on Saturday night, a remarkably punctual conclusion by COP standards. There was a bit of drama at the end, over a “should” vs. “shall” in one of the provisions (more on that tomorrow), and the final plenary waited for more than an hour while the French presidency, the United States and Brazil tried to work it out. But there was none of the chaos and grandstanding that usually characterizes the end game of climate conferences.

How should we evaluate the Paris Agreement? Certainly, it satisfied the rather modest criteria of success I identified before the conference began. It is a solid outcome, and the French team that led the conference and the negotiators who worked round the clock to finalize the agreement can feel proud of their achievement. Compared to past climate conferences, the Paris conference is definitely cause for celebration.

But is the Paris Agreement historic, as speaker after speaker last night declared? If we focus only on the agreement’s relatively spare contents, it seems hardly the stuff of history. Yes, the agreement does some positive things: it requires countries to put forward “nationally determined contributions” (NDCs) – that is, pledges about what they will do to reduce emissions; it provides for transparency and review, to hold countries accountable for what they say; and it provides for a global stocktaking every 5 years and a process to update NDCs, in order to drive greater ambition over time. But one shouldn’t oversell these results. The NDCs put forward pre-Paris fall far short of putting the world on a pathway to holding temperature change to below 2° C. Countries’ NDCs are not legally binding. There is little new in the agreement on adaptation and finance. And the provisions regarding transparency and review are skeletal, and will need to be fleshed out by subsequent decisions.

Still, despite its relatively modest substance, the Paris Agreement is potentially pivotal, because it completes the paradigm shift from the bifurcated world of the Kyoto Protocol, which rigidly distinguished between “Annex I” and “non-Annex I” countries, to the common global framework that began to emerge in the Copenhagen Accord. The world has changed a great deal from 1992, when the UN Framework Convention on Climate Change was adopted and Annex I defined. Many of the world’s richest countries, like Singapore and Qatar, are still considered “developing” under the Convention’s outdated annexes. And, more importantly, most of the growth in greenhouse gas emissions over the next century will occur in “developing” countries. So reorienting the UN climate change regime to make it truly global is essential to solving the climate change problem.

Getting there wasn’t easy. Many developing countries were extremely reluctant to give up the deal they had gotten in Kyoto. That’s one of the reasons why the negotiations in Paris were so difficult. (Other reasons include the reluctance of donor countries to provide more finance and the need for the US to avoid commitments that might require Senate or Congressional approval.) In order to achieve a common approach, the US and other western countries had to accept somewhat limited provisions on transparency and updating. But this was a small price to pay, if the Paris agreement finally puts the climate regime on a broad-based, durable footing, which can be progressively strengthened over time. If that happens – and, of course, only time will tell – then the Paris agreement will merit the accolades that were showered on it today.

http://opiniojuris.org/2015/12/13/it-the-paris-agreement-historic/

4 Responses

  1. On the last-minute switch:

    http://balkin.blogspot.com/2015/12/the-last-minute-correction-to-paris.html

    I’d be curious to hear, Daniel, what you think the *practical* implications are, in terms of compliance, etc., for the switch back from “shall” to “should.” That is to say: How much does it really matter whether there are obligations under international law?

  2. Hi Marty, Thanks. Enjoyed your post on Balkinization! Personally, I don’t think there is much practical difference, except that President Obama will be able to join the Paris agreement without going to the Senate or Congress because it says “should” rather than “shall” — which is, of course, huge. The agreement relies on transparency and peer pressure to hold states accountable for doing what they say, and a developed country will be criticized in the future for not undertaking a quantified absolute economy-wide emissions target, whether the agreement says “should” or “shall” — the only difference will be that the criticism will be politically- rather than legally-based.

    I discuss the difference between legally-binding and non-legally binding instruments in a paper that can be found on SSRN at:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2649630

    Dan

  3. That paper is an extremely useful primer, Dan–I’ve added a couple of links to it in my post. Thanks

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  1. […] COP-21 adopted the Paris Agreement (.pdf) at around 7:30 pm on Saturday night, a remarkably punctual conclusion by COP standards. There was a bit of drama at the end, over a “should” vs. “shall” in one of the provisions (more on that tomorrow), and the final plenary waited for more than an hour while the French presidency, the United States and Brazil tried to work it out. But there was none of the chaos and grandstanding that usually characterizes the end game of climate conferences… suite […]