The Paris Agreement: Symbolism rather than historical significance

Posted by: Frances Lawson

The homepage of the UNFCCC website, like most of the post-COP21 publicity, proclaims the Paris Agreement to be “historic”. It adds, as a sub-heading, that 195 countries have “set a path to keep temperature rises well below 2 degrees Celsius”.

One of the most important tasks post-COP21 is to separate the spin from the substance, to distinguish the Agreement’s political significance from its legal import. To the ministers and government representatives who worked quite literally through the night in Paris to secure its universal approval, the Agreement is a sizeable achievement; it is, indeed, the first time that the entire international community of States has pledged to undertake actions to address the global phenomenon of climate change. For the French Government, the Agreement is an immense relief, the spectre of a humiliating ‘Copenhagen-style’ failure having been successfully defeated.

The Agreement’s value is not only political; by aiming to keep global temperature increase “well below” 2 degrees Celsius, and for a peaking of emissions as soon as possible, the Agreement sends out important messages of intent to investors, energy companies and other actors. “The fossil fuel era is dead” some have already started to claim. This may be stating it too highly, but the Paris Agreement does clearly indicate that the global community’s general direction of travel is away from highly polluting energy sources and activities and towards cleaner, low-carbon resources.

Legally, however, the Agreement is a highly imperfect creature, even in the context of the particularities of international law. The Agreement’s multiple flaws as a legal instrument will be the subject of detailed analysis in the posts that follow. For now, however, it suffices to say that it does not “set a path to keep temperature rises well below 2 degrees Celsius”. It does set a path, but not one that in itself will deliver the temperature goal, or the overarching objective of the Convention. Universal participation in the most politically charged international agreement comes at a cost in terms of legal efficacy.

The full text of the final Agreement can be found here 

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The truth about what will really enable us to tackle climate change effectively

Posted by: Frances Lawson

At the heart of any discourse are assumptions that are taken to be beyond question. The dominant climate change discourse encircling the current COP21 negotiations is based on several such assumptions which therefore lie outside the scope of what is being discussed, not only by ministers and negotiators, but by also commentators. Challenging those assumptions crosses some red lines into territory that is deeply unpopular, even scandalous. At least some of those assumptions are, however, what lies between us and an effective approach to tackling climate change.

Assumption 1: Limitless economic growth is both a good thing and compatible with climate change mitigation

There are, of course, many who challenge the economic growth doctrine and call for a more ‘distributive’ and ‘just’ economic model. Those people, however, are immediately marginalised into the ‘extreme left’ of the political spectrum and stripped of any mainstream credibility. Anyone who wants to be listened to and taken seriously by decision-makers has to endorse the ‘economic growth’ agenda as the only legitimate approach. Consequently, even some in the NGO world have begun to tacitly accept the narrative of ‘growth’ in their literature.

There is no need for an economics degree in order to understand why the current ‘growth’ model is inherently incompatible with effective climate change action. The need for growth is taken to be endless, infinite … it is the motor for the global economy, and consequently there will never be a point at which we can step off its hamster wheel. There are two preconditions in order for the economy to grow endlessly – the first is that everyone on the planet continues to consume more and more ‘stuff’ … we buy more goods, throw things away quicker, replace them quicker, own more than we need etc. That is what retailers, manufacturers, producers rely upon to generate higher and higher profit levels, which in turn produce rising levels of GDP. The other precondition is that there are ever more consumers on the planet, in other words, an ever higher global population.

No politician, no commentator, no analyst, no researcher has, to my knowledge, explained how we can have ever greater levels of consumption and successfully tackle climate change in line with the scientific consensus. There is much talk of how consumption habits can be made ‘greener’ and ‘more sustainable’. Making consumption less environmentally harmful is, however, is very different from those consumption habits being consistent with total decarbonisation and the limiting of warming to 2 degrees Celsius. The reason, I suggest, for the absence of an explanation as to how ever-greater growth, and the ever-greater consumption it relies upon, can fit with the overarching objective of the UNFCCC is due to a mixture of denial and a resolute refusal to discuss it where it needs to be discussed most.

Assumption 2: Economic growth is needed in order to eliminate poverty

The rationale for maintaining the economic growth doctrine is an emotive one. It is impossible to argue against the desirability of reducing, or ideally eliminating, poverty. Within the climate negotiations, developing countries proclaim a right to economic growth, and therefore to emit greenhouse gases, in order to ‘eliminate poverty’, an objective reinforced by the Sustainable Development Goals adopted in September 2015.

We only have to look at our own countries for abundant proof that our current economic growth model does not lead to poverty elimination. Every morning in Paris, I walk past at least half a dozen homeless people either begging in the street, or wrapped up in a sleeping bag. The picture is equally dismal on my home territory of Islington in North London. One of the great ironies of the climate negotiations is that developing countries are asserting a need to pollute in order to adopt a development model that has comprehensively failed to eliminate poverty in the developed countries that they wish to emulate.

No reasonable person would dispute that we should aim for a world without poverty, or at the very least, without a poverty extreme. What we are failing to ask ourselves, however, is whether a world without poverty means that everyone has the right to own and drive a car? To own a detached property with private garden? To have satellite TV? Multiple mobile phones? The developing country discourse in the UNFCCC seems to suggest that everyone in their countries should enjoy the standard of living that some, but not all, in the developed world have available to them, as if these things are the benchmark of a ‘life without poverty’. Such a discourse overlooks not only the viability of everyone on the planet having these things without that very planet being destroyed, but also whether these things are what enable people to live a happy, healthy and fulfilling life. Questioning this discourse, however, tends to result in being labelled as someone who wishes to see the perpetuation of poverty-induced suffering.

Assumption 3: Everyone can have it all

This assumption ties together the two previous ones. The reason for the reticence of the Parties to the UNFCCC to bind themselves to legal obligations to reduce greenhouse gas emissions to the extent required by the science is because they fear it may harm their short-term economic interests to do so. What underpins this reticence is said to be the desire to ensure that standards of living are maintained in the developed world, and that poverty is eliminated in the developing world. What it is actually about, however, is one simple phrase … wanting to have it all.

There is an unspoken assumption in the ‘developed world’ that we have to continue to have all that we have at present, indeed that it is our ‘entitlement’ – we need to be able to drive our cars when we want, fly abroad when we want, buy things we don’t need when we want, throw things out the minute they don’t work … this is the concept of ‘freedom’ and ‘happiness that we have brought into. It is out of the question in our era to make sacrifices, even for the future of the planet. Maybe because ‘sacrifice’ has a religious connotation that makes us uncomfortable. Or maybe because the majority have still bought into the notion, sold us by the ‘economic growth’ advocates in politics, that having all this ‘stuff’, benefiting from all these ‘freedoms’ make us happy. Would being only able to take one flight per year affect my personal happiness? Having reflected on the question, and despite my love of international travel, the answer is no, it would not. Would I be prepared to make that, and other sacrifices, in order to ensure we are successful in limiting global warming? Unhesitatingly yes I would. From a small survey of my friends, so would others. Yet, due to the erroneous assumptions above, none of us are being asked to. Instead, we’re being told we can have it all and encouraged to consume even more that we do at present.

Once again, no politician, commentator, researcher has, to my knowledge, explained how we can enable a global population of 8 billion (and rising) to benefit from an unlimited ability to fly, drive cars, use energy, consume goods and services whilst making deep and lasting cuts to our greenhouse gas emissions in the short timescales required to avoid catastrophic climate change. The simple reason is because we can’t.

If the international community is sincere in its commitment to tackling climate change in time, it is time to question the assumptions above and reflect upon the following alternative truths:

1. The current consumption-based economic growth model is fundamentally incompatible with adequate climate change mitigation and is the major block to an effective agreement in Paris.

2. The current economic growth model is primarily about wealth accumulation, greed, and wanting to have it all … not about poverty elimination.

3. Developing country calls to be allowed to follow our example economically is, in many cases, not just about eliminating poverty but is also about the politics of envy, wealth accumulation and greed.

4. In order to successfully mitigate climate change, developing countries must immediately adopt a truly sustainable, decarbonised, low-emission pathway, fully supported and enabled by the developed world. There should be no new building of fossil-fuel energy generation facilities – everything financed by the developed world should involve renewable energy. Reversing what has already been done 10, 20 years down the line is so much harder than doing it in the right way first time around.

5. An alternative economic model is needed that does not rely upon endless consumption, is compatible with our climate mitigation commitments and which promotes a good quality of life for everyone without extremes of wealth.

6. We need to change our discourse from believing we can, and should, have it all to one where we recognise that avoiding catastrophic climate change requires adjustments to our daily lives, and some modest sacrifices that, most probably, will not impinge our quality of life or happiness.

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13 pages down – update on the text at the midway point

Posted by: Frances Lawson

Four days of fervent negotiations have delivered what the COP21 hosts had requested – another revised version of the Paris Agreement text for consideration ahead of the second and final week.

In addition to the Paris Agreement itself, Parties are simultaneously negotiating two other documents – a Decision on the implementation of, and modalities for, the Agreement (referred to as the ‘Decision on Workstream 1), and a Decision on Parties’ actions to ‘fill the gap’ and cover the period between now and 2020 when the Agreement takes effect.

The latest version of the combined text is already 13 pages shorter than it was, showing that efforts to consolidate and streamline the various options on the table are yielding results. Far more important, however, are changes to tighten up the text. The mitigation section, in particular, shows signs of improvement, with the language of Parties’ commitments moving more towards “shall” rather than “should”, and the reduced number of options showing greater clarity in wording.

Another crucial section which is showing signs of improvement is Article 2 on the Agreement’s ‘Purpose’. Option 1 now sets the objective as being for Parties to take action so as to hold the global average temperature increase either to 1.5 degrees Celsius, or well below 2 degrees Celsius. This both reflects an increase in the level of ambition relative to the previous version of the text and the removal of a number of alternative bracketed options. The alternative option remains, however, for there to be no Article 2 at all, which, if adopted, would leave a major hole at the centre of the Agreement.

Article 11 on compliance has also received attention during the first four days in Paris. Now much shorter and clearer, it reveals the potential for developed country parties to be subject to some kind of punitive compliance system if they fail to deliver on their commitments. Nevertheless, options remain on the table for the system in respect of developed and developing countries to be entirely non-punitive, non-judicial and non-adversarial, and even if a punitive approach is finally adopted in respect of developed countries, it may fall far short of what is required to give commitments real legal force.

The latest version of the text can be found here

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Why Obama’s fine words have fallen too late

Posted by: Frances Lawson

Of the various COP21 headlines that have hit the media during the first few days of the conference, one of the most celebrated was President Obama’s concession that “some” parts of the text should “have legal force”.  With the US a longstanding opponent of any binding commitments under the UNFCCC given the domestic legal position, the President’s remarks have been widely heralded as a watershed.

Perhaps too much so. Although undoubtedly welcome, his words do not change a stark reality – none of the options being negotiated at COP21 relating to the new Agreement’s enforceability provide for it, or any part of it, to have real legal force.  The title of Article 11 itself – “facilitating implementation and compliance” is indicative of the “softly softly” approaches to be taken thereunder and reflects the absence of “bindingness” in any of the earlier provisions. The different options in the text can be summarised as follows:

  1. An implementation and/or compliance committee (or mechanism) to facilitate/incentivise/promote/enforce Parties’ commitments.
  1. A differentiated, two-tier system whereby developed country parties are subject to an “enforcement” branch that can “make recommendations”, make a declaration of non-compliance, request a compliance action plan or take other unspecified actions. Developing country parties, meanwhile, would be the subject of a “facilitative” branch to help them to fulfil their pledges.

Even with the shift in the US position, the shape of the text is such that there is very little likelihood of the final Agreement having anything that a lawyer would call “legal force”. Unfortunately, the lack of appetite for “legal force”, or at least, universal force applicable to all, is rooted in far more than just United States domestic politics, and reflects a wider reluctance to be “bound” to climate commitments for fear of damaging economic interests.

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It’s all in the brackets – the final COP21 negotiating text (Part 2)

Posted by: Frances Lawson

The final text for the Paris Conference was published at 23:30 at the very end of the last negotiating session. Spread over 59 pages, the text is divided into three parts: the first 31 pages set out the options for the Draft Agreement, the second 20 pages are devoted to what is called ‘the Draft Decision on workstream 1’, and the final eight pages to the ‘Draft Decision on workstream 2’. This next post follows on from the previous one by simplifying and explaining the content and purpose of the remainder of the proposed legal agreement, and the main issues therein to be resolved here in Paris.

Article 4 – Adaptation

Recent years have seen an increased focus on adaptation which has tended to be regarded as mitigation’s “poor relation”, much to the frustration of particularly vulnerable developing countries. The Paris legal text is meant to mark a redressing of the balance, with much talk in recent months of a “global goal” on adaptation as an eye-catching headline to reflect the added momentum. Although Article 4 of the final text contains plenty of content, the substance thereof is very weak. Most of the proposed text is statements of principle more suited to recitals than to core parts of the agreement. The proposals for the global goal do not aspire further than the enhancement of capacity and resilience, and a corresponding reduction in vulnerability; nevertheless, it is described as the “basis” for assessing the adequacy of developed country financial support. In short, there is a startling lack of anything that can be quantified, measured or qualitatively evaluated throughout all of the adaptation provisions.

Even the commitment to undertake a national adaptation planning process is riddled with qualifications so that the obligation is subject to Parties’ own “circumstances and priorities” and the requirements for such a plan are expressed as an optional list. Moreover, the plans themselves will not necessarily be required to fit with the National Adaptation Plans that have already been established several years ago under the Cancun Adaptation Framework. Rather than consolidating what already exists, there is a real risk of repetition both of what has already been agreed under another part of the UNFCCC machinery, and of the creation of new and additional “mechanisms” and “plans”.

The other key adaptation component is for Parties to submit an “adaptation communication” but here, one of the options is for this to be something that Parties “may” do, making it far less than an actual commitment.

Article 5 – loss and damage

Loss and damage is a relatively new addition to the remit of the UNFCCC. Designed to ensure that countries affected by physical damage and monetary losses due to climate change-related weather events receive financial compensation, it covers scenarios where adaptation efforts prove inadequate. With a large number of Parties opposed to any L&D mechanism within the Agreement, there is a high chance that it will not feature in the adopted text.

Article 6 – Finance

This Article is most remarkable for the absence of unbracketed text. When it comes to who provides money to whom, how much and for what, everything is contentious. It is also the Article in which the ongoing definitional debate about who is a Developed Country Party, who is still developing, who is somewhere in-between and what can and should be expected of each, finds it fullest expression, illustrated below in one part of one of the two options on the negotiating table:

4. [[Developed country Parties should take the lead and][Developed country Parties[Parties with economies in transition] [and Parties [in a position][with capacity] to do so]] [All Parties [in a position][with capacity] to do so] [shall][should][other] provide support to assist developing country Parties with respect to both mitigation and adaptation [and others in a position to do so should complement such efforts].]

Such language effectively allows many Parties a considerable margin to “self-define” as “still developing” and or “without the capacity to do so” even when GDP and other indicators would suggest otherwise. The vagueness creates a legal hollowness which makes the whole provision rather redundant.

One positive proposal in the finance provision is the first part of Option 1, which, if adopted, will require all financial flows to promote and be consistent with the transition to low-carbon economies. Given the vast sums still provided to prop up the fossil fuel industry, this is a proposal that thoroughly deserves inclusion, and which is specific enough to add value.

Article 9 – Transparency

This Article is a classic example of how the principle of “common but differentiated responsibilities” is being stretched far beyond its original purpose; one of the four options on transparency provides for developing country parties to be subject to different transparency requirements that developed country parties, as if their economic status renders them less capable of being transparent as to the actions they are undertaking. As highlighted in the previous post, this is one of the most important parts of the Agreement if it is to be effective, and the need for clear rules common to all is abundantly obvious.

Article 10 – the Global Stocktake

This Article is a classic example of how requests for finance have infiltrated even seemingly innocuous parts of the Agreement. The idea of the Global Stocktake is for there to be a regular, five-year, review of the adequacy of Parties’ commitments, particularly in view of the 2 degrees target. One option on the table provides for developing countries’ participation in the stocktaking exercise to be dependent on the provision of finance.

Article 11 – Compliance

A legal agreement is nothing if it is not enforceable. A compliance mechanism is therefore a vital part of any binding agreement. Article 11, however, exemplifies the dissonance between Parties’ public commitments to a “legally binding” instrument, and what they have actually put on the table to this effect. There is quite simply nothing “binding” about any of the options on the table for the Agreement’s compliance mechanism. Whichever of the options is adopted, the effect is largely the same – “enforcement” of developed country Parties’ commitments means “making recommendations” for how to implement better, whilst developing country Parties look set to get off even more lightly with a purely “facilitative” approach to the fulfilment of their obligations. The message is clear – the compliance system is to be non-adversarial, non-punitive and non-judicial. Where is the “bindingness” in the “binding” legal instrument, one may well ask. Facilitation should, of course, be the first step in an Agreement of this type, but should that fail, teeth are required so that commitments can bite. Otherwise, there is nothing other than mild embarrassment and peer pressure standing between Parties and a change of heart regarding their commitments – neither of which hindered Canada spectacularly going back on its obligations under the Kyoto Protocol.

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