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28听October 2021听
By听Christoph Schwarte, Executive Director, Legal Response International
As part of the , states need to abide by all their obligations under international law and seek to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. Where states have made commitments or accepted certain responsibilities under an international treaty such as the Paris Agreement - which aims to guide the international community鈥檚 response to climate change for years to come - the resulting expectation is therefore two-fold: their own conduct needs to be in line with the treaty, but they should also help to create the wider enabling environment that can effectively respond to the adverse effects of climate change and support the goals of the .
The Paris Agreement was adopted in 2015 and entered into force in 2016. As a result, there is limited experience of parties鈥� compliance with the new treaty. Before the from the Agreement under Article 28 they briefly considered downgrading their nationally determined contribution (NDC 鈥� formal submissions where parties mainly indicate their emission reduction and mitigation commitments). This is despite the fact that the Paris Agreement says that each successive NDC should 鈥渞epresent a progression鈥� (Art.4.3), and adjustments be done 鈥渨ith a view to enhancing [a party鈥檚] level of ambition鈥� (Art.4.11). Notwithstanding those provisions, by modifying the methodology and relevant reference points (the baseline) for their mitigation target, in an update to its first NDC. All parties to the Paris Agreement were requested to submit a by the end of 2020 but not even half of them met that deadline. A more fundamental compliance issue would be whether parties鈥� mitigation pledges really reflect their 鈥渉ighest possible ambition鈥� (Art.4.3). The architecture of the Paris Agreement leaves this assessment to each individual party and there is no higher authority or independent body to determine the adequacy and fairness of a commitment.
Another compliance issue that has received little attention to date concerns the joint NDC of the European Union and its member states. The Paris Agreement (in Art.4.16) specifically provides that parties which have reached agreement on a joint NDC 鈥渟hall notify the secretariat of the terms of that agreement, including the emission level allocated to each Party within the relevant time period鈥�. Each EU member state is severally and jointly liable with the EU for its individual emission levels (Art.4.18). As part of the , the EU has increased its emission reduction target from at least 40% to 55% by 2030 in comparison to 1990 levels. A corresponding update to the NDC was submitted on 17 December 2020. The European Commission has tabled proposals for amending the relevant EU legislation (e.g. on the EU Emission Trading Scheme and the Effort-Sharing Regulation) in light of the new target. But because EU Members States are still negotiating, the bloc has not been able to notify the UNFCCC secretariat of the terms of an agreement, including Member States鈥� individual emission levels.
So while the EU is generally perceived as a leader in international efforts to tackle climate change and in July 2021 to decarbonise its economy, for the time being it is actually non-compliant with a formal, largely procedural obligation under the Paris Agreement. But as long as the EU and its Member States try their best to meet the collective target 鈥� does the missing notification matter? I think it does. As with many other multilateral environmental agreements (MEAs) the Paris Agreement is built around procedural commitments (as opposed to specific substantive outcomes). For the Agreement to succeed, parties will have to take these requirements seriously, in particular those that contain a clear obligation of conduct (鈥渟hall鈥�). The requirement to inform others about individual emission levels ensures a degree of clarity, transparency and accountability in case an agreement to act jointly, for example, fails or is prematurely terminated. Non-compliance could weaken the Agreement鈥檚 ability to function effectively and undermine trust in a system one may be highly critical of but which is pretty much the only 鈥済ame in town鈥� at the intergovernmental level. And while currently only the EU has a joint NDC, other parties or economic integration organisations may follow their example. The current situation risks setting a precedent for the Agreement鈥檚 future implementation and resulting in different interpretations of parties鈥� obligations and legal uncertainties.
But there may also be another reason why it matters. States鈥� compliance with international law to a large extent depends on mutual respect, good will, peer pressure, fairness and the wider dynamics created by a treaty regime. International negotiations are often more about gestures, face-saving and posturing then the immediate outcomes. So by ignoring their own failure to notify the UNFCCC secretariat of Member States鈥� emission levels, the EU may be wasting an important opportunity to strengthen the Paris system, lead by good example and rekindle some of the lost trust between parties in the international climate negotiations. Tackling the issue head on (and maybe reporting the issue to the for facilitating implementation and compliance with the Paris Agreement) may create a whole new momentum of solidarity and for 鈥渄oing things differently鈥� - something all governments have promised to do at some point during the COVID-19 pandemic.
鈥漇olidarity鈥� is also where the second component of the rule of law in international relations comes into play. The planet is in a state of emergency that already affects or immediately threatens human rights, biodiversity, and the territorial integrity of many states. To avoid a complete 鈥渃limate break down鈥� and establish conditions under which low carbon development, human rights, and justice can be maintained everywhere, the international community has to pursue the three complementary goals of the Paris Agreement (mitigation, adaptation, and finance flows) in a much more holistic and collaborative manner. Important opportunities 鈥� for example to anchor the responsibility for human rights鈥� violations regardless of jurisdiction in the Paris Agreement 鈥� have already been missed and providing climate finance as part of charitable giving (without acknowledging legal liability) is simply not enough to create the fundamental change needed.