The Paris Agreement: a new beginning?

Abstract

The Paris Climate Change Conference was tasked to set the world on a path to address the greatest challenge to ever face humankind, by adopting a new climate agreement. The outlook for the conference was rather bleak. The laborious and increasingly frequent meetings of the body entrusted to draft the text of the Paris Agreement, the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), had made limited progress. These negotiations had eloquently demonstrated the futility of technical negotiations, without political consensus on the core elements and features of the new agreement. Yet, to the surprise of many, the Paris Conference concluded on 12 December 2015, with the adoption of a new climate treaty.

This article reflects on the Paris Conference and on its outcome. First, it collocates the conference in the history of the climate regime. Then, it explains what Parties were expected to deliver. Finally, it assesses the outcome of the conference against these expectations. The article concludes with a reflection on where the climate regime is likely to head next, and where the Paris Agreement leaves Parties in their efforts to tackle climate change.

Notes

1 UN Framework Convention on Climate Change (Rio de Janeiro, 9 May 1992, in force 21 March 1994) 1771 UNTS 107.

2 UNFCCC, Article 2.

3 Martin L Parry et al, ‘Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change’, 19.4.2.2: 2207.

4 Kyoto Protocol (Kyoto, 11 December 1997, in force 16 February 2005) 2303 UNTS 262.

5 UNFCCC, Annexes I and II.

6 Doha, 2012, not yet into force.

7 Decision 1/CP.13, Bali Action Plan, FCCC/CP/2007/6/Add.1.

8 Decision 1.CP/17, Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, FCCC/CP/2011/9/Add.1.

9 Ibid, 2 and 4.

10 Negotiating Text, FCCC/ADP/2015/1, 25 February 2015.

11 Draft agreement and draft decision on workstreams 1 and 2 of the Ad Hoc Working Group on the Durban Platform for Enhanced Action Work of the ADP contact group, available at http://unfccc.int/resource/docs/2015/adp2/eng/11infnot.pdf.

12 Parties' submissions may be accessed at http://unfccc.int/focus/indc_portal/items/8766.php accessed 15 December 2015.

13 Synthesis Report on the Aggregate Effect of the Intended Nationally Determined Contributions, FCCC/CP/2015/7.

14 Karl Mathiesen and Fiona Harvey, ‘Climate Coalition Breaks Cover in Paris to Push for Binding and Ambitious Deal’ The Guardian (8 December 2015) http://www.theguardian.com/environment/2015/dec/08/coalition-paris-push-for-binding-ambitious-climate-change-deal, accessed 15 December 2015.

15 The negotiating text delivered by the ADP may be accessed at http://unfccc.int/resource/docs/2015/adp2/eng/l06r01.pdf

16 As reported in Joust Pauwelyn and Lilliana Andonova, ‘A ‘Legally Binding Treaty’ or Not? The Wrong Question for Paris Climate Summit’ www.ejiltalk.org/a-legally-binding-treaty-or-not-the-wrong-question-for-paris-climate-summit/ accessed 14 December 2015.

17 Daniel Bodansky, ‘The Legal Character of the Paris Agreement: A Primer’ http://opiniojuris.org/2015/12/02/the-legal-character-of-the-paris-agreement-a-primer/ accessed 14 December 2015.

18 Paris Agreement, Article 4.2.

19 Paris Agreement, Article 4.4.

20 Paris Agreement, Article 6.

21 Paris Agreement, Article 4.1.

22 Paris Agreement, Article 2.1(a).

23 See, for example, Paris Agreement, Articles 1 and 2.

24 Paris Agreement, Article 2.

25 Paris Agreement, Article 16–18.

26 Paris Agreement, Article 21.1.

27 Daniel Bodansky, ‘The Durban Platform: Issues and Options for a 2015 Agreement’ (Social Science Research Network 2012) SSRN Scholarly Paper ID 2270336 http://papers.ssrn.com/abstract=2270336 accessed 24 September 2015.

28 Decision 2/CP.15, Copenhagen Accord, FCCC/CP/2009/11/Add.1.

29 Kyoto Protocol, Annex B.

30 Lavanya Rajamani, ‘From Berlin to Bali and beyond: Killing Kyoto Softly [article]’ (2008) 57 International and Comparative Law Quarterly 909; and Daniel Bodansky, ‘W[h]ither the Kyoto Protocol? Durban and Beyond’ (Harvard Project on Climate Agreements 2011) www.c2es.org/docUploads/whither-kyoto-protocol-durban-and-beyond.pdf.

31 See for example Daniel Bodansky and Elliott Diringer, ‘The Evolution of Multilateral Regimes: Implications for Climate Change’ (Pew Center on Global Climate Change 2010) www.pewclimate.org/docUploads/evolution-multilateral-regimes-implications-climate-change.pdf; and Daniel Bodansky, ‘A Tale of Two Architectures: The Once and Future U.N. Climate Change Regime’ (2011) http://papers.ssrn.com/abstract=1773865.

32 Decision 1/CP.16, Cancun Agreements, FCCC/CP/2010/7/Add.1, 44–46 and 63–64.

33 Paris Agreement, Article 13.4 and 13.13.

34 Paris Agreement, Article 4.9.

35 Paris Agreement, Article 14.2.

36 Paris Agreement, Article 4.3.

37 Paris Agreement, Article 15.

38 On the law-making powers of COPs, see Robin R Churchill and Geir Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’ (2000) 94 The American Journal of International Law 623, 638–641.

39 UN Secretary-General Ban Ki-moon statement in the closing hours of the Paris Climate Change Conference, notes on file with the author.

40 Paris Agreement, Article 4.1.

41 Paris Agreement, Article 3.

42 Paris Agreement, Article 4.4 and 4.5.

43 Paris Agreement, Article 4.4.

44 Paris Agreement, Article 3.

45 Paris Agreement, Article 4.6.

46 Paris Agreement, Article 4.8–4.13.

47 Paris Agreement, Article 9.1 and 9.2.

48 Paris Agreement, Article 13.

49 Paris Agreement, Article 13.13.

50 Paris Agreement, Article 13.11.

51 Paris Agreement, Article 13.12.

52 Decision 1/CP.21, at 99.

53 Eric A Posner and David Weisbach, Climate Change Justice (Princeton University Press 2010).

54 See for example, Friedrich Soltau, Fairness in International Climate Change Law and Policy (Cambridge University Press 2009).

55 See for example the papers included in Stephen Humphreys, Human Rights and Climate Change (Cambridge University Press 2009).

56 Decision 1/CP.21, 52.

57 Decision 1/CP.21, 50.

58 Decision 1/CP.21, 49.

59 As argued also in Daniel Bodansky, ‘Is the Paris Agreement Historic?’ http://opiniojuris.org/2015/12/13/it-the-paris-agreement-historic/ accessed 14 December 2015.

60 Perhaps with the sole exception of economic, social and cultural rights. See Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H Knox, A/HRC/25/53, 62–68.

61 See for example, Human Rights Council Resolution 10/4 (2009), A/HRC/RES/10/4Preamble.

62 Decision 1/CP.16, 8.

63 Ibid, 7.

64 John H Knox, ‘Mapping Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment. Individual Report on Global and Regional Environmental Agreements’ (Office of the United Nations High Commissioner for Human Rights 2013) http://www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/MappingReport.aspx accessed 14 December 2015, 9.

65 Annalisa Savaresi and Jacques Hartmann, ‘Human Rights in the 2015 Agreement’ (Legal Response Initiative 2015).

66 Decision 1/CP.21, 106.

67 Paris Agreement, Article 6.