By Annalisa Savaresi
The 21st Conference of the Parties (COP21) to the United Nations Framework Convention on Climate Change (UNFCCC) adopted a new climate treaty, the Paris Agreement. The Agreement makes unprecedented references to climate justice, human rights and the role of non-state actors in addressing climate change. This post reflects on these references, providing an early assessment of where the Paris Agreement leaves States in their efforts to tackle climate change in the light of equity, as well as linkages with BENELEX research on fair and equitable benefit-sharing.
The Paris Agreement: what it is and what it does
The UNFCCC aims to stabilize greenhouse gas concentrations in the atmosphere and prevent dangerous human interference with the climate system (UNFCCC, Article 2). The main instrument adopted to achieve this objective, the 1997 Kyoto Protocol to the UNFCCC, imposed targets to reduce emissions on developed countries only. With growing emissions in developing countries like China and India, however, scientists have long warned that reducing emissions in developed countries only is not enough.
UNFCCC Parties have long been entangled in difficult negotiations on measures to reduce emissions across the board. These negotiations suffered numerous setbacks and almost collapsed in 2009 in Copenhagen. Subsequent negotiations have opened the way to a new approach to differentiation between Parties’ obligations. COP21 was expected to bring to a conclusion this long cycle of negotiations, by adopting a new climate agreement.
The Paris Agreement does not do away with the UNFCCC, but builds upon its institutional and normative framework with the aim of enhancing its implementation. As such, the Paris Agreement is an ancillary treaty to the UNFCCC (Savaresi, 2016), dealing with the same substantive issues, namely: mitigation; adaptation; and capacity building, finance and technology transfer – commonly referred to as means of implementation.
The Paris Agreement enshrines a commitment to hold the increase of global average temperatures ‘well below’ the 2°C goal identified by scientists as the threshold for averting dangerous human interference with the climate system (Article 2.1.a). In order to achieve this goal, the Agreement requires all Parties (not just developed countries) to make efforts to reduce their emissions and to submit information on the details (Article 4.2). Therefore, when compared with the UNFCCC and the Kyoto Protocol, the Paris Agreement introduces a new, more nuanced approach to differentiation, partially dismantling the firewall between developed and developing country Parties’ obligations. And while the Agreement still hinges on equity and the principle of common but differentiated responsibilities (Article 2.2), the nuancing of differentiation in Parties’ obligations does not only apply to mitigation, but also to the provision of means of implementation. For example, on finance, the Agreement reasserts developed countries’ obligation to support developing ones (Article 4.5), but also encourages other Parties to provide financial support on a voluntary basis (Article 9.1-2).
The Paris Agreement gives Parties ample leeway to decide how to reduce emissions. In this connection, the Agreement consolidates and builds on the bottom-up pledge and review approach, which emerged at COP15 in Copenhagen in 2009. This approach entails that Parties unilaterally declare actions they intend to undertake to reduce their emissions, which are then subjected to an international review process. The implementation of this approach has raised numerous challenges. Firstly, Parties reported their pledges as they saw fit, thus engendering a great deal of confusion as to what they are actually committing to do. Secondly, there was no mechanism to ratchet up ambition over time. Finally, the review process was differentiated, in line with the bifurcated approach to Parties’ obligations under the UNFCCC.
The Paris Agreement has arguably addressed these shortcomings by establishing a periodic process for the submission of information on all Parties’ efforts to tackle climate change (Article 4.9), according to guidance to be adopted by the COP serving as the meeting of the Parties to the Paris Agreement (Article 4.13). Crucially, the Paris Agreement has set the premise for a process to review Parties’ action, both at the individual (Article 13) and at the aggregate level (Article 14). Implementation of the Agreement will furthermore be assisted by an expert-based, facilitative compliance mechanism (Article 15). Therefore, not only does the Paris Agreement provide an obligation for all to make efforts to reduce their emissions, it also sets the basis for a common process to review action, and enhance it when needed. While it is already clear that the Parties’ contributions submitted to date are far from consistent with the 2° C goal, the Agreement has, at least in theory, kick-started a process to review and increase the level of ambition.
The details of these review and compliance processes, however, remain to be determined by the body entrusted to prepare for the entry into force of the Paris Agreement. In this regard, the adoption of the Agreement is just the beginning of a new regulatory season, where Parties will flesh out the processes and rules to assist its implementation. Only after these rules have been adopted and implemented will it be possible to tell whether the Paris Agreement is a game changer in international climate governance.
Equity profiles in the Paris Agreement
The Paris Agreement breaks new ground by making explicit references to non-state actors, climate justice and human rights. Each reference is discussed below, reflecting on its implications and potential relevance for BENELEX research.
Action by non-state actors has increasingly been acknowledged as an important component to solve the climate problem (see our earlier post: UN Climate Summit: A New Approach for Agriculture and Forests?). Ahead of COP21, an unprecedented UNFCCC portal showcased voluntary emission reductions undertaken by actors such as companies, cities and subnational governments. The preamble of the Paris Agreement builds upon this increased awareness, recognizing in a treaty for the first time the importance of engaging ‘all levels of government’ and ‘various actors’ in addressing climate change (Paris Agreement, Preamble).
While the UNFCCC already made generic reference to public participation in addressing climate change and its effects and developing adequate responses (UNFCCC, Article 6), the Paris Agreement specifically emphasizes enhanced public and private sector participation in the implementation of nationally determined contributions (Paris Agreement, Article 6.8).
This renewed attention to the role of non-state actors is also evident in the acknowledgement that climate change adaptation ‘should be based and guided by’, amongst other things, ‘traditional knowledge, knowledge of indigenous peoples and local knowledge systems’ (Paris Agreement, Article 7.5). Even though the role of traditional knowledge had already been recognised in UNFCCC COP decisions (see our earlier post: Traditional Knowledge in the New Climate Agreement), a reference in the Agreement potentially opens the way to greater inclusion of, and consideration for, traditional knowledge holders in international climate change governance. This potential is corroborated by the decision at COP21 to establish a platform for the exchange of experiences and sharing of best practices on mitigation and adaptation of local communities and indigenous peoples (Decision 1/CP.21, paras 134-136). Typically under the climate regime these developments fall within the remit of the COP and subsidiary bodies assisting it with its work. BENELEX will be following these developments closely and studying possible connections between developments under the Paris Agreement and those under international biodiversity law (see our earlier post: Towards International Guidelines on Prior Informed Consent and Fair and Equitable Benefit-sharing from the Use of Traditional Knowledge)
Analogous considerations apply to the Paris Agreement’s unprecedented preambular reference to ‘climate justice.’ The issue of climate justice attracted much attention ahead of COP21. The term has been used to refer to distributive and corrective justice considerations associated both with the impacts of climate change and with climate change response measures. It is therefore inherently linked with equity in the climate regime, and ultimately revolves around how to share the burdens associated with a global transition towards low-carbon societies. In this connection, benefit-sharing may be conceptualised as a means to address climate justice (see our earlier post: Unpacking the Debate on Climate Justice and Equity).
The Paris Agreement tiptoes around these complex issues. On corrective justice, the Agreement is the first climate change treaty to make reference to the contentious matter of loss and damage caused by climate change (Paris Agreement, Article 8) without, however, shedding a great deal of light on how it will be addressed. In Paris, some developed countries successfully asked the COP to specify that the provision in the Paris Agreement on loss and damage ‘does not involve or provide a basis for any liability or compensation’ (Decision -/CP.21, at 58). Instead, COP21 merely established a process to develop recommendations for approaches to avert, minimise and address displacement, and a clearinghouse for information on insurance and risk transfer (Decision 1/CP.21, at 50).
As far as distributive justice is concerned, the picture emerging from the Paris Agreement is even more opaque. The Paris Agreement does not go very far in establishing new obligations around adaptation and means of implementation. Still, the accompanying COP decision does make reference to a collective quantified goal for support to developing countries from a floor of USD 100 billion per year (Decision 1/CP.21, at 54). The Agreement also subjects the implementation of developed Parties’ obligations concerning the provision of finance (Paris Agreement, Article 13.6) to a review process for the first time. BENELEX will follow developments in these negotiations to gauge whether and how the concept of benefit-sharing could be deployed as a tool to address inter-state equity in the distribution of climate finance and means of implementation (as explained in Savaresi, 2014).
Finally, the Paris Agreement is the first multilateral environmental agreement to make reference to Parties’ obligations concerning human rights. It does so by specifying that Parties ‘should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights.’ While the reference is confined to the preamble, and does not configure new and separate legal obligations for Parties, its importance can scarcely be overlooked. While references to human rights had already appeared in UNFCCC COP decisions (see our earlier post: Unpacking the Debate on Climate Justice and Equity), inclusion in the preambular paragraphs of a treaty carries political and moral weight, forging an explicit link between obligations under the climate regime and those under international human rights law instruments Parties have already ratified, or may ratify in future, as well as under domestic law. This means that Parties are expected to interpret their obligations under the Paris Agreement in light of their existing human rights obligations concerning matters such as public participation and the rights of women and indigenous peoples.
More ambitious language on human rights had been included in earlier iterations of the negotiating text, including some references in the operative part of the Agreement (Savaresi and Hartmann, 2015). The operative part of the Paris Agreement still makes specific references to gender-responsiveness, both in relation to adaptation and to capacity-building (Articles 7.5 and 11.2). These passim references break new ground, but do not go as far as earlier textual proposals, which made a connection between gender equality in climate policy-making and benefit-sharing (FP7 Frame, 2015).
Even within this limited remit, references to human rights, indigenous peoples’ rights and gender responsiveness in the final text of the Paris Agreement may have significant implications for the interpretation and further development of Parties’ obligations in relation to climate change response measures. For example, REDD+ activities can have profound human rights implications associated with impacts on forest-dependent communities flowing from changes and restrictions of extant forest uses (see our earlier post: REDD+ at the Intersection of Biodiversity, Climate Change and Human Rights Law: Reflections on Equity and Benefit-sharing). As previously explained in this blog, benefit-sharing arrangements are already being widely used to reward various actors for their contribution to REDD+ activities, raising some crucial equity questions (see our earlier posts: Unpacking the Debate on Climate Justice and Equity: REDD+; and The Operationalization of Benefit-sharing in REDD+). The same may be said in connection with standards concerning the disbursement of climate finance, where benefit-sharing already features as a requirement (see BENELEX mind map).
Equity in the climate regime: where next?
The Paris Agreement will be opened for signature on 22 April 2016, and will enter into force when at least 55 Parties to the UNFCCC, representing at least 55% in global emissions, ratify it. In the meantime, a new, predictably lengthy regulatory season will start, beginning with the next session of the UNFCCC subsidiary bodies in May 2016. The story of the Paris Agreement, therefore, largely remains to be written.
For the time being, the Paris Agreement seems to have opened a new season in international climate governance, fostering the emergence of a cooperative spirit that will potentially give greater consideration to the role of non-state actors in climate action, questions of justice, and the interplay between climate change and human rights law. How far Parties to the climate regime will use these new elements to address the difficult equity questions that have challenged them over the years, remains to be seen. It would be naïve to expect the Paris Agreement to be a miraculous cure for all the maladies of the climate regime. Yet the new agreement seems to bode well for the future of this troubled international environmental governance process. In the coming months, BENELEX will closely follow developments under the Paris Agreement concerning traditional knowledge, REDD+ and the interplay between climate change and human rights law.
Photo courtesy of IISD