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Trade, Economics and Environment

Climate Change and the Syrian Civil War

by Chris Borgen

Scientific American has published an article by John Wendle on how climate change has spurred the conflict in Syria. Wendle writes:

Climatologists say Syria is a grim preview of what could be in store for the larger Middle East, the Mediterranean and other parts of the world. The drought, they maintain, was exacerbated by climate change. The Fertile Crescent—the birthplace of agriculture some 12,000 years ago—is drying out. Syria’s drought has destroyed crops, killed livestock and displaced as many as 1.5 million Syrian farmers. In the process, it touched off the social turmoil that burst into civil war, according to a study published in March in Proceedings of the National Academy of Sciences USA. A dozen farmers and former business owners like Ali with whom I recently spoke at camps for Syrian refugees say that’s exactly what happened.

He tells a story of environmental degradation, ill-conceived agricultural and water-management policies, and their effects:

“The war and the drought, they are the same thing,” says Mustafa Abdul Hamid, a 30-year-old farmer from Azaz, near Aleppo… “The start of the revolution was water and land,” Hamid says.

But the story Wendle writes is about more than Syria:

The refugee crisis will eventually subside, [Richard Seager,a professor at Columbia University’s Lamont–Doherty Earth Observatory] assumes, and the war in Syria will run its course. Nevertheless, he says, the region’s droughts will be more frequent and more severe for the foreseeable future. After closely studying dozens of climate models he and Kelley and their colleagues are convinced that continued greenhouse gas emissions will widen the Hadley cell, the band of air that envelops Earth’s tropics in a way that could further desiccate the lands of the eastern Mediterranean.

These past months many people have written about the Syrian civil war. Many have written about climate change. Wendle’s article considers both the perspectives of farmers who have become refugees and of scientists studying climate change. It is not only describes where we are, but how we got here, and what may be yet to come.

Highly recommended.

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.

Transparency and Access at the Paris Negotiations

by Hari Osofsky

[Hari Osofsky is a law professor, faculty director of the Energy Transition Lab, and director of the Joint Degree Program in Law, Science & Technology at the University of Minnesota. She is serving as chair of the American Society of International Law’s observer delegation at the 2015 Paris climate change negotiations. Any views expressed are those of the author and do not represent the views of either the University of Minnesota or the American Society of International Law. This is her second post from Paris.]

Expectancy has dominated the last two days as people awaited each day’s new draft of the agreement. Because the negotiations are taking place behind closed doors, people use relationships to learn ever-evolving information about the state of negotiations and timing of draft release and to give input to the small set of party representatives allowed in the negotiating rooms. They also race to gain the tickets that allow them access to the plenary room in which the Comité de Paris takes place, since most observers and many delegation members are stuck watching in overflow rooms. In the spirit of transparency, no one except those compiling the draft receives a copy before its release at the Comité de Paris and the drafts and reports on the consultations have all been posted publicly. I stood in a dinner line tonight with a minister who affirmed that he was looking forward to seeing the new draft.

At the Comité de Paris in which Wednesday’s draft was released, Laurent Fabius, COP 21 President, noted many new areas of convergence (there was a three-quarter reduction of bracketed language) and three remaining cross-cutting outstanding political issues, which are no great surprise: differentiation, financing, and level of ambition. After a second Comité de Paris that went until almost 11:30 pm, party statements reinforced that many key negotiating issues still remained, as Dan Bodansky’s post covered. I too was struck by the number of parties calling for a goal limiting the temperature rise to 1.5 degrees, as well as the level of support for the human rights provisions and REDD+.

State parties worked overnight and a new draft was released Thursday evening, with the time rolling back from early afternoon to 9 pm as people exchanged rumors and information. The same three political issues remain the key areas of negotiation and parties are participating in an Indaba of Solutions (closed to observers, with three exchangeable passes for each party) from 11:30 pm on after two hours to review the document. President Laurent Fabius made clear that the time has passed for general statements, and that this Indaba would focus only on compromise solutions aimed at seeking landing zones. He still aims to produce the final text tomorrow. The new text has even fewer bracketed items, and clearly represents some tough compromises. Notably, for example, human rights are mentioned in the preamble without brackets, but have been removed from the operational Article 2.

Press conferences abound as this COP moves towards its conclusion, reinforcing the sense of energy here. In one of the most high profile press events yesterday, Secretary Kerry formally announced that the U.S. is part of the high-ambition coalition and would double its grant-based adaptation commitments by 2020. The press conference was screened to an overflow audience at the U.S. Center as security excluded all observers from the actual press conference (limited to the press pool).

At the same time the negotiations continue to unfold, side events highlighting cities, states, and corporations, as well as a myriad of specific issues, proliferate inside the restricted Blue Zone, in the public Climate Generations space, and around Paris. As someone trying to go to as many side events as possible on subnational government and corporations (while also attending the very limited number of the official negotiation meetings that I have access to), I am overwhelmed by the number of simultaneous options. Participants in these events, including ones who have been to many COPs, attest to the growing role of these non-nation-state entities and recognition of that role. At the same time, many of them call for greater access and inclusion.

As I return from tonight’s meeting, I want to reflect for a moment on this question of access in a world of increasingly polycentric climate change governance. I worry about what those concentric circles that I referred to in my first guest post mean for stakeholders’ ability to have input into the critical compromises being made as I write. There is a fundamental tension at the core of this issue. On the one hand, closed spaces can help people speak freely in ways needed for compromise. On the other hand, if all these other stakeholders matter to the problem and its solution, are current avenues for input enough?

Non-parties have certainly had some avenues for input here besides back channels and this post is not intended as a criticism of access at this meeting in particular. Observers were given the opportunity to talk with Executive Secretary Christiana Figueres and UNFCCC COP 20 President and current Peruvian Minister of Environment Manuel Pulgar-Vidal Wednesday morning, and Minister Pulgar-Vidal conveyed their input at the Comité de Paris just before the Wednesday evening meeting closed. Meanwhile, advocacy groups, such as the coalition working to shift the countries opposing human rights provisions, continue their campaigns to influence national positions with letters and calls to key officials—as well as by comments on drafts given to those with access to negotiators. And nation-states’ pledges through their Intended Nationally Determined Contributions (INDCs) are foundationally based on conversations that national governments have had with other key governmental and nongovernmental actors.

The access issues in international negotiations, though, are much more fundamental than the particular procedures used in any given meeting. Namely, the nation-state-based structure of negotiations and agreements fundamentally limits how polycentric governance is in this context. Even if cities, states, regions, and corporations form their own agreements and pledges, the closed structure of this final stage of negotiations constrains how much those efforts are able to align. And as many have discussed in multiple contexts, resource differences among nation-states make a major difference in their ability to negotiate; the President has tried to be sensitive to small delegations who do not have enough people to attend simultaneous meetings on several streams, but it is clearly much easier for delegations that can substitute in negotiators as meetings go into the wee hours over multiple nights.

The solution to this problem is not straightforward. The world remains divided into nation-state units and treaties among nation-states remain the strongest mechanism that the world has to try to achieve universal action—a critically needed step given how large the gap is between the INDCs and the 1.5 (or even 2) degree goal. But after people emerge from this meeting, hopefully with as strong a Paris Outcome as possible, it is worth taking some time to consider what ways might exist to bring key actors on climate change together better as they make important decisions.

The Endowment Effect and the International Climate Change Negotiations

by Daniel Bodansky

[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 fifth 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.]

According to the endowment effect, people care more about losses than gains. If the no-Paris-agreement status quo represents country’s current endowment, then the endowment effect suggests that countries will place a higher priority on removing provisions in the Paris agreement that represent losses to them, than on including provisions that represent wins. That is why, in reaching an agreement, countries tend to resolve differences by removing provisions rather than by adding them. Hence the incredible shrinking climate agreement that I described in my earlier post.

Yesterday afternoon, the French put out a new version of the text (.pdf). Even though it made relatively modest changes, and left all of the crunch issues unresolved, and even though all countries accepted it as a basis of negotiations, they raised many objections in a three-plus hour meeting of the Paris Committee last night. Indeed virtually every option that the French text had tried to remove, some country insisted on putting back in. Following the Paris Committee, which ended at about 11:30 PM, the French presidency convened a smaller, closed meeting (known as an Indaba, a term that originated at the 2011 Durban COP), which reportedly ran until 7:30 AM. Apparently, the Indaba made little progress in bridging differences, so the French are now conducting bilateral consultations with a wide variety of countries, to try to reach agreement on “landing zones” for the various issues in the text.

Interestingly, the issue that was probably raised most frequently last night in the public meeting of the Paris Committee was the need to strengthen the long-term goal from the current goal of limiting temperature increase to no more than 2° C, to a goal of no more than 1.5° C. Since most analysts agree that there is no prospect of meeting the below-2° target, it is unclear what benefit would be provided by adopting an even more unrealistic temperature goal. Supporters of the 1.5° goal remind me of the courtiers to King Canute, who thought he could command the tide not to rise – they seem to believe that saying 1.5° will make it so. This reflects a touching faith in the power of words, but, frankly, I think the efforts to include a 1.5° degree goal might better be spent on including provisions in the agreement that are most likely to actually reduce emissions, such as a strong transparency system and a ratchet mechanism to encourage progressively more ambitious action over time.

The negotiations are now going 24/7. Although they are scheduled to end on Friday, most assume that they will continue into Saturday and possibly Sunday. A good indicator is that most delegations with whom I’ve spoken have booked return tickets for Monday!

Correction:  My original post incorrectly suggested that King Cnut actually believed he could command the tide to stop.  But, apparently, the correct rendition of the story is that King Cnut knew he was powerless to stop the tide from rising, and ordered it to do so either to show the supreme power of God over his own secular power, or to rebuke his fawning courtiers (depending on which version of the tale one reads).

The Incredible Shrinking Climate Agreement?

by Daniel Bodansky

[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 fourth 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.]

“Tomorrow and tomorrow and tomorrow creeps in this petty pace from COP to COP.” For many, that might be the slogan of the UN climate change regime. Or, to mix literary metaphors, the COPs are reminiscent of Sartre’s No Exit, where hell consisted of being locked in a room talking to the same small group of people for eternity.

Paris is the opportunity to prove the skeptics wrong – to show that the climate change regime can take a real step forward, rather than just creep along from COP to COP. But whether it will succeed in doing so remains an open question.

First, the good news. Paris is definitely one of the best-organized COPs ever – the French have done a fantastic job. And the mood, perhaps not coincidentally, is also good, totally unlike the poisonous atmosphere in Copenhagen, where some countries sought to systematically undermine the Danish Presidency. In contrast, one hears nothing but praise for the French team’s handling of COP21. Instead of angry protesters outside the venue, people are handing out apples, as a taste of biodiversity.

Moreover, the text is gradually being streamlined to a more manageable size. Parisagreement.org, a group based at UC San Diego, have been tracking the number of brackets and options in each successive iteration of the negotiating text. According to their figures, the number of brackets in the December 5 text has shrunk by 45% from the November 10 text, and the number of options by 60%. Of course, their work reminds me a bit of the Monty Python skit in which John Cleese compares the difficulty of Shakespeare’s plays in terms of the number of words they contain: Hamlet has 8262, Othello has 941 words fewer, and so forth. But then he adds, “Ah well, I don’t want you to get the impression it’s just the number of words … I mean, getting them in the right order is just as important.” Something similar could be said of brackets; it’s not just the number, it’s also a matter of whether they reflect real differences or are just negotiating ploys. That said, I do think it’s fair to infer that the shrinking number of brackets and options reflects progress. And I remain optimistic that there will be an agreement this week in Paris.

The question is what will survive the negotiating process and make it into the agreement. Although the text is in better shape than many expected and the number of crunch issues is relatively manageable, states continue to push proposals that have no prospect of being accepted, in an effort to gain negotiating leverage. So progress remains slow.

The political imperative of reaching a deal gives tremendous leverage to potential naysayers. The usual solution, when time is running out, is to cut and cut and cut, until the outcome doesn’t push any country past its comfort zone. Developing countries want strong provisions on finance and differentiation, while developed countries want more modest provisions. Conversely, developed countries want strong provisions on transparency and updating (to promote progressively higher mitigation ambition), while the big developing countries do not. How to bridge these differences? The easiest solution is to trade weak provisions on finance and differentiation for weak provisions on transparency and updating.

Even if this is how the end game plays out – and that is, of course, by no means a foregone conclusion – I don’t think it would be fair to characterize the Paris process as a failure. Paris has served as a catalyst both for national governments and for sub-national and non-governmental initiatives. It has prompted more than 185 countries to put forward INDCs, which would reduce emissions by an estimated 4-8 gigatons below business as usual by 2030, according to a recent report by UNEP. It has led to a groundswell of activities by cities, regions, and companies. And it has spawned initiatives like Mission Innovation, announced last week by President Obama, President Hollande, and leaders from 18 other countries, who pledged to double their clean energy R & D over the next five years, as well as the related private initiative, the Breakthrough Energy Coalition, led by Bill Gates. So, in many ways, Paris is already a success. Nevertheless, the international agreement that the Paris process is supposed to produce is also a key ingredient. If the INDCs submitted by countries aren’t bolstered by an agreement with strong provisions on transparency and ambition, then I think Paris will be a lost opportunity to show that the UN process can do more than creep – that there’s a way out of the room within which the negotiators have been locked.

Success in the Paris Climate Negotiations in Broader Context

by Hari Osofsky

[Hari Osofsky is a law professor, faculty director of the Energy Transition Lab, and director of the Joint Degree Program in Law, Science & Technology at the University of Minnesota. She is serving as chair of the American Society of International Law’s observer delegation at the 2015 Paris climate change negotiations. Any views expressed are those of the author and do not represent the views of either the University of Minnesota or the American Society of International Law.]

I appreciate the opportunity to guest blog with Opinio Juris while at the Paris climate change negotiations this week. I will aim in my blogs to complement Dan Bodansky’s excellent assessment of the negotiations among state parties by examining the broader context of what would be required to address climate change adequately and the activities by other key stakeholders.

From my observation of the first Comité de Paris and hallway conversations on Monday, December 7, the parties still seem on track to reach some sort of agreement in Paris, though perhaps not by the Friday deadline. While there are certainly some differences yet to be resolved, the tone appears to be unusually cooperative at this stage according to those who have attended many of these negotiations.

However, even if the agreement contains reference to the need to keep warming less than 1.5 degrees, which appears increasingly likely, the state parties are highly unlikely to actually achieve that with their current commitments. As one civil society participant from Latin America remarked to me yesterday, the key question is whether we hold warming at 3 or 4 degrees. While I certainly hope he is wrong, we are not on track, even is these negotiations successfully conclude, to mitigate at the levels that scientists say are needed. And as I have analyzed in forthcoming articles with Jackie Peel  and Hannah Wiseman, even if we can find ways to more constructively address energy partisanship in the United States, the Clean Power Plan will involve a complex integration of an environmental cooperative federalist law with a largely state- and regionally-based energy system.

So how do we bridge the gap between what negotiations among nation-states can achieve and what is needed? Two key pieces of that puzzle are subnational governments and the private sector (particularly corporations and investors), and my blogs this week will focus on some of their activities here.

In the process, I will also try to convey, for those who have not attended international negotiations like these, the concentric circles of activity taking place here, with access limitations between each ring. At the core are the nation-states negotiating, and even some of those meetings are only open to subsets of those negotiators. A key concern raised in the Comité de Paris by several state parties on Monday night was the need for more transparency and inclusion in the informal facilitated streams taking place this week to try to bridge differences. Outside of that are official observers, who can gain access to only a very limited set of the negotiations but are able to enter the “Blue Zone,” which contains the negotiating spaces and many of the high-level side events. Outside of the restricted space, a hall in Le Bourget and venues around Paris contain events open to the many people who are here without access passes.

As I move between sessions in the “Blue Zone” space, the people around me exude a sense of being rushed and busy with important tasks as they race among meetings and cluster in small groups in hallways. I am continually reminded of an observation by Sheila Watt-Cloutier, the-chair of the Inuit Circumpolar Conference, when she presented  at the climate change negotiations in 2005, the year that the Inuit submitted their petition to the Inter-American Commission on Human Rights claiming that U.S climate change policy violated their rights:

I have attended three COPs. People rush from meeting to meeting arguing about all sorts of narrow technical points. The bigger picture, the cultural picture, the human picture is being lost. Climate change is not about bureaucrats scurrying around. It is about families, parents, children, and the lives we lead in our communities in the broader environment. We have to regain this perspective if climate change is to be stopped.

While many at these negotiations clearly have that bigger-picture focus, I think that continually reminding ourselves of what all these legal conversations are really about is critical. Achieving an agreement that goes farther than anything that preceded it at Paris would certainly be a form of success, but ultimately we only succeed if we limit human suffering and ecosystem damage—and develop new opportunities—through mitigating and adapting adequately.

Crunch Issues in Paris

by Daniel Bodansky

[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 third 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.]

In an earlier post, I expressed cautious optimism that the Paris conference will succeed in adopting a legal agreement that requires countries to formulate and submit emission reduction plans, provides for international transparency and review, and establishes a process for countries to periodically ratchet up their efforts. But although the broad outlines of the agreement have been apparent for several years, a number of important issues remain to be resolved, on which the conference could still founder.

Here’s a brief summary of the “crunch” issues:

• How to reflect the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC)?

The issue of differentiation has been one of the most controversial since the inception of the UN climate change regime, and plays out across all of the different elements of the Paris agreement: mitigation, adaptation, finance, and transparency. It’s clear that the Paris agreement will move away from the rigid differentiation between Annex I and non-Annex I countries found in the Kyoto Protocol, towards a more global approach. But will any vestige of the Annex I/non-Annex I dichotomy remain?

Developed countries mostly argue that the concept of nationally determined contributions (NDCs) implies self-differentiation and that this self-differentiation is sufficient. But many developing countries would like some continuation of the categorical, annex-based approach found in the UNFCCC and the Kyoto Protocol. The 2014 US-China joint announcement added the phrase “in light of different national circumstances” to the principle of CBDR-RC, apparently to give it a more dynamic quality. This formulation was included in the Lima Call for Action (.pdf), and will almost certainly find its way into the Paris Agreement. But a general reference to CBDR-RC will likely not be enough to satisfy developing countries, so expect to see some additional language on differentiation in particular articles, for example, those on mitigation and transparency.

I don’t see the US and other developed countries accepting a reference in the Paris agreement to the UNFCCC annexes, which they view as outmoded, but my guess is that negotiators will find some language to bridge the gap – for example, in the context of mitigation, a principle of progression, which provides that countries that have previously pledged absolute economy-wide targets should continue to do so and that all countries should aim to do so over time. This formulation, in effect, differentiates between Annex I countries (which all pledged absolute, economy wide emissions targets in Copenhagen) and non-Annex I countries, without any explicit reference to the annexes, and thus might be acceptable to both sides.

• Whether to include a long-term decarbonization goal?

In Copenhagen, states agreed to a goal of limiting climate change to no more than 2° C. There is considerable – but not universal – support for supplementing this goal with a long-term decarbonization goal, like that included in the G-8 Leaders Statement last June, to provide a signal to business and investors. Many countries would like to include a decarbonization goal in the Paris agreement itself, but if consensus cannot be reached to do so, a possible fallback would be to include the goal in the Conference of the Parties (COP) decision that adopts the Paris agreement, which would give the goal a slightly lesser political status.

• Whether to include a commitment that parties implement their nationally determined contributions (NDCs)?

A central issue in the negotiations has been what commitments to include with respect to NDCs. There is broad agreement to include procedural commitments – for example, to formulate, submit, and periodically update NDCs. And even countries that seek to make NDCs legally binding seem to accept that the agreement will not commit countries to achieve their NDCs (thus distinguishing the Paris agreement from the Kyoto Protocol). But the European Union and some developing countries wish to include a commitment relating to implementation of NDCs.

A duty to implement, as compared to a duty to achieve, is an obligation of conduct rather than result. But if the Paris agreement contained a straightforward obligation on parties to implement their NDCs, then the difference between the two approaches appears small, since, arguably, the test of whether a state has implemented its NDC is whether it has achieved its NDC. This has led to a search for softer formulations of the commitment to implement: for example, a commitment to adopt measures “aimed” or “intended” to implement a country’s NDC, or a commitment to adopt implementing measures “related to” a country’s NDC. The trick is to find some formulation that (more…)

State Department Confirms that Senators Rubio and Cotton were Right, Professors Ackerman and Golove were Wrong

by Julian Ku

I can’t resist one final post to complete an earlier discussion between myself and professors Bruce Ackerman and David Golove on the legal status of the Joint Comprehensive Plan of Action (JCPOA), also known as the Iran Nuclear Deal.  As several others in the blogosphere have noted, the U.S. State Department has confirmed, in a letter to Congress, the following:

The Joint Comprehensive Plan of Action (JCPOA) is not a treaty or an executive agreement, and is not a signed document. The JPCOA reflects political commitments between Iran and the P5+1 (the United States, the United Kingdom, France, Germany, Russia, China) and the European Union. As you know, the United States has a long-standing practice of addressing sensitive problems in negotiations that culminate in political commitments.

(Thanks to Michael Ramsey at the Originalism Blog and Matthew Weybrecht at Lawfare for noting and posting this letter).

This letter confirms that, contra the argument advanced by Professors Ackerman and Golove in the Atlantic and on this blog, the JCPOA is NOT a congressional-executive agreement authorized by Congress when it passed the Iran Review Act last spring.  Rather, the entire JCPOA is a “political commitment.”

As Professor Ramsey correctly notes, this means that Senator Marco Rubio was quite right in saying that, if elected President, he could withdraw the JCPOA without violating U.S. or international law.  It also means that Senator Tom Cotton was quite right, as a practical matter, in his famous open letter saying that the next US president could withdraw the agreement.  And it means (less importantly in the grand scheme of things but important for me), that I was right in saying that the JCPOA is not a congressional-executive agreement.

The larger issue is this: If the President is going to go around making political commitments, that’s fine.  But he should be clear that this is what he is doing so that smart people like Professors Ackerman and Golove don’t get confused into thinking he is making a binding agreement..  As Dan Bodansky explains, the U.S. is going to make the Paris Agreement a political commitment (at least with regards to emissions reductions).  As I’ve been arguing here and elsewhere, the U.S. should be clear about what it is doing in Paris, and what it is not.

What Would Constitute Success in Paris?

by Daniel Bodansky

[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 will be in Paris for the climate change negotiations. This is the first 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.]

The latest episode of the long-running drama known as the UN climate change negotiations begins this week in Paris. Commentators are touting the Paris conference as “historic”, “pivotal,” the “last chance” for the world to address the climate change problem. So what would constitute success?

For the past couple of decades, political scientists and international lawyers have debated how to measure the effectiveness of international environmental regimes. The gold standard of effectiveness is whether an agreement solves the problem that it seeks to address. That would require the Paris conference to prevent “dangerous anthropogenic climate change” – the explicit objective of the UN Framework Convention on Climate Change. No one is exactly sure how much global warming would be compatible with this objective; to the extent severe weather events like the 2003 Paris heat wave (.pdf) or Hurricane Sandy can be attributed to global warming, then perhaps we are already in the dangerous zone. At the Copenhagen Conference, the international community defined the goal less stringently, as warming of less than 2° C above pre-industrial levels. But some think that 2° itself would be too much, arguing for limits of 1.5° or even .

So far, the world has warmed by about 1°, according to the latest data from the UK Met Office. This might suggest that we’ve still got some headroom, measured against the 2° temperature. But the climate system has tremendous inertia, so the effects of past emissions have been only partially realized. Even if we stopped emitting completely right now, the world would still warm by another half degree or more before leveling off. And, of course, global emissions continue to go up rather than down, and peak emissions, let alone zero emissions, are still more than a decade away.

The bottom line is that there is no prospect that the Paris conference will, in itself, put us on a pathway to meeting the below-2° limit. The emission reduction goals that countries have submitted as part of the Paris process (known in climate change argot as “intended nationally determined contributions” or INDCs) instead put the world on a pathway to global warming of around 3° or 3.5°. So if we take problem-solving effectiveness as our measure of success, then we are bound to be disappointed.

But few public policies fully solve the problem that they address; by that standard, virtually every public policy falls short. In my view, the more reasonable test is whether the Paris conference results in a significant improvement over what would have happened otherwise. And by this measure, the Paris conference is likely to be successful.

How should we assess whether Paris is moving us in the right direction? I would suggest four elements:

• First, is the Paris agreement global in its coverage?
• Second, have countries pledged to make significant reductions in their emissions?
• Third, does the agreement establish mechanisms to promote transparency and accountability, so that we will know whether countries do what they say?
• Fourth, does the agreement provide a process to to ratchet up its level of ambition over time?

On the first element, the Paris process can already be counted a success. More than 150 countries, representing more than 85% of global emissions, have come forward with INDCs – that is pledges of what they’re going to do to reduce emissions. Compared to the Kyoto Protocol, which even in its prime covered only about 25% of global emissions, this a major step forward.

Second, the INDCs that countries have submitted represent a significant improvement over current policy. According to a recent analysis by the UN Climate Change Secretariat, they would reduce emissions by about 3 gigatons (GT) CO2e in 2025 and 4 GT in 2030, as compared to the business-as-usual trajectory. Although this falls well short of putting the world on a below-2° pathway, global warming of 3° C would still be better than 3.5°, and 3.5° better than 4°, and 4° better than 5°. So if Paris moves us down the scale of likely warming, then this represents progress.

Third, countries seem likely to agree to a relatively robust system of reporting and review. While transparency in itself does not ensure that countries will comply, at least it would allow the international community to assess whether countries are living up to their pledges, and to exert peer pressure if they don’t.

Finally, countries also look likely to agree to come back every five years to take stock of what’s been achieved and how that compares to the 2° goal, and to put forward new, more ambitious emission reduction plans.

So I am cautiously optimistic about the Paris conference. Of course, one shouldn’t underestimate the capacity of the UN climate change process to seize defeat from the jaws of victory. And the victory would, in any event, be only partial. But if Paris establishes a durable framework that is global in scope, provides for transparency, and pushes to strengthen ambition over time, then, for me, that would be a significant achievement and would constitute success.

International Law Does Not Prohibit Commercial Asteroid Mining. Nor Should It.

by Julian Ku

Last week, the U.S. Congress passed the US Commercial Space Launch Competitiveness Act of 2015 (or the “Space Act”), which will authorize private U.S. companies to own and sell resources they extract from objects in space. Supporters (and detractors) are calling this historic, because it is the first time the U.S. government has plainly authorized commercial exploitation of outer space resources.  Here is some key language from the bill, which President Obama is expected to sign.

§ 51303. Asteroid resource and space resource rights

“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”.

This provision has been criticized as violating U.S. obligations under the Outer Space Treaty of 1967.  Chief among those obligations is Article I of that treaty:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

There is also Article II, which seems to restrict claims of sovereignty in outer space.

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
The Space Act of 2015 tries to avoid this potential conflict by limiting itself to authorizing private citizen (as opposed to “national”) exploitation, and subjecting that exploitation to “international obligations of the United States.”  The Act also goes on to “disclaim” extraterritorial sovereignty (shouldn’t that be “extraterrestrial” by the way?)

It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.

I think the law’s backers are correct that it does not violate US treaty obligations. All it does is allow private US citizens to “possess, own, transport, use, and sell” extraterrestrial resources without violating U.S. law.

On the other hand, it is also true that other spacefaring countries could allow their citizens to do the same.  Indeed, I think their government space agencies could probably also do so, als long as they are not “claiming sovereignty.”  Without an explicit international treaty regulating commercial space resource exploitation, it will ultimately be a question of each country’s domestic regulations.   Can the U.S. live with that result?

I think it can.  In my view, the UN Law of the Sea created a complicated bureaucracy for handling management of the international seabed, way before any commercial exploitation of that seabed was even possible.  We don’t know yet what types of exploitation are feasible, and we might as well let this process evolve on its own before demanding a worldwide international treaty on the subject.  There will be plenty of time for that.

A Treaty or Not a Treaty? My Senate Testimony About the Paris Climate Change Agreement

by Julian Ku

I had the honor and pleasure of testifying today before the U.S. Senate’s Environment and Public Works Committee.  The topic of the hearing was “Examining International Climate Negotiations” and the upcoming conference in Paris. My own contribution argued that an agreement with legally binding emissions reduction obligations should be submitted to the Senate as a treaty rather than as a sole executive agreement.  I further argued that the Senate should require to the State Department to clarify which parts of a climate change agreement are legally binding, and which ones are merely non-binding political commitments.

You can watch the oral testimony and the questions below on C-SPAN (my testimony starts around the 11’40” mark. Almost all of the testimony has to do with the substantive merits of such an agreement (about which I express no opinion), as opposed to the legal aspects. So I will go ahead and declare victory for my argument by default.

The ICC Gets Its New Headquarters — and They Are Amazing

by Kevin Jon Heller

A couple of years ago, I praised the winning design for the ICC’s permanent home but acknowledged that I preferred a different one. I’m happy to report that I was wrong, at least aesthetically: the Court’s new headquarters are absolutely beautiful. Here are a few photos:

International-Criminal-Court_Hague_Schmidt-Hammer-Lassen-Architects_dezeen_1568_3

International-Criminal-Court_Hague_Schmidt-Hammer-Lassen-Architects_dezeen_936_8

International-Criminal-Court_Hague_Schmidt-Hammer-Lassen-Architects_dezeen_936_6

You can tell the Court’s staff is eager to move into their new home, because there is a large sign in the current building’s foyer that is actually counting down the time. And I don’t blame them — the complex really is an architectural masterpiece.

That said, I confess that I still find the move a bit troubling, both because of the cost — approximately €190,000,000, though the ICC website dedicated to the project is strangely silent about finances — and because the grandeur of the new headquarters far surpasses the Court’s accomplishments to date. We can only hope that the Court grows into its new home — I would hate to see such magnificence wasted on rebels like Ongwen and deposed leaders like Gbagbo. This is the kind of dock suitable for the Bushes and Blairs of the world.

PS: On Facebook, my friend and SOAS colleague Stephen Hopgood — author of the must-read The Endtimes of Human Rights — criticises the “distant, imperious and abstract concept of justice” this kind of minimalist High Modernist architecture “symbolise[s] for the peoples of the whole, diverse world.” I think that’s an excellent point.