The Paris Agreement: Miracle or Mirage?

XiawanLiu

The Paris Agreement: Miracle or Mirage?

By: Xiawan Liu, Staff Contributor

At the Paris climate conference of the United Nations Framework Convention on Climate Change (UNFCCC) in December 2015, 195 UNFCCC participating member states and the European Union adopted the Paris Agreement by consensus. The agreement sets out a global plan that tackles greenhouse gas emissions. Laurent Fabius, the Conference Head, said this “ambitious and balanced” plan was a “historic turning point” in the goal of reducing global warming. The UN Secretary General Ban Ki Moon said that the agreement “promises to set the world on a new path to a low emissions, climate-resilient future.”[1] But questions have been raised while the document sits on the table waiting for signatures. Is the promise only a promise, or a real turning point?

The agreement sets out an ambitious goal to hold “the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels.”[2] To achieve this goal, the agreement calls for transparent global collaboration. Under the agreement, countries agree to submit updated plans that would ratchet up the stringency of emissions by 2020 and every five years thereafter.[3] The agreement also requires countries to monitor, verify, and report their greenhouse gas emissions using the same global system.[4] Acknowledging the hardship in some less developed countries, countries agree to provide continued and enhanced international support for adaptation to developing countries. The most significant proposal is a non-binding plan of at least $100 billion of aid per year to the developing world.[5]

The agreement represents a landmark achievement after many years of less successful attempts. The first international response to the global climate change was UNFCCC. UNFCCC entered into force in 1994 and established a long-term objective of stabilizing greenhouse gas concentrations in the atmosphere “at a level that would prevent dangerous anthropogenic interference with the climate system.”[6] UNFCCC was followed by the Kyoto Protocol in 1997. The Protocol set binding targets to reduce emissions 5.2 percent below 1990 levels by 2012.[7] It also set a market-based enforcement mechanism which soon becomes operational.[8] However, the United States never ratified the Protocol. The next major movement, the Copenhagen Accord, made little progress. It leaves blank most of the key details and provides only a voluntary framework.[9] If strictly enforced, the Accord would severely handicap the economy of the developed countries.[10] The United States, again, did not ratify the agreement.

But it is widely believed that the Paris Agreement did make the history. Climate policy experts appeared largely satisfied with the agreement.[11]French PresidentFrancois Hollande also alluded the agreement to be“an ambitious agreement, a binding agreement, a universal agreement.”[12]

On the other hand, the agreement receives criticism mostly from scientists. Some scientists believe that the agreement does not go far enough and other think that the agreement lacks binding power. A group of climate scientists contend that by the time the agreement takes effect, so much more CO2 will have been pumped into the atmosphere that we may already be locked into warming above the 2 degree line.[13]Former NASA scientist James Hansen believes that the agreement would be pointless unless greenhouse gas emissions are taxed across the board.[14]

The international society has long reached the consensus on the objective to reduce greenhouse gas emissions. The key to assess the new agreement is how it would be enforced. To this end, the agreement tightens its grip upon some elements while leaving other aspects of the deal as non-binding.[15] The heart of the agreement is a bottom-up structure. The participating states are free to choose their action plan to achieve the overall objective while the international society provides a supervision system. The binding provisions focus on a mandatory participation in a public exposure platform.[16] The signatory states are required to report, verify, and review the domestic information under a unified system.[17] But the accounting system is more self-regulated. Participating states are required to account for the nationally determined contributions. [18] The agreement also provides for a supporting system to provide resource and guidance in developing countries; however, the $100 billion aid proposal is non-binding.

The agreement receives criticism for lack of penalty provision and detailed enforcement mechanism. The formal mechanism is driven by the economic and political self-interest of nations.[19] Even the experts and politicians who applaud the agreement admit that the agreement would be enforced by social opinions, peer pressure, and environmental activists.[20]Former Vice President Al Gore made rather reserved comments: “No agreement is perfect, and this one must be strengthened over time, but groups across every sector of society will now begin to reduce dangerous carbon pollution through the framework of this agreement.”[21]

The flexible enforcement framework provides a better chance to get ratified in the United States. To be enforced, the Treaty must be signed by the President and ratified by the Senate. Once ratified, the Treaty would be the supreme law and override all inconsistent state law. The United States failed to ratify the Kyoto Protocol and the Copenhagen Accord partly because of the mandatory enforcement mechanism under the domestic legal system. The bottom-up framework under the Paris Agreement mitigates the hardship of reconciling with domestic law. The Clean Air Act and the United Nations Framework on Climate Change signed by former President George H.W. Bush already provide a solid ground from which to carry out the flexible commitment in the Paris Agreement.[22] Moreover, the United States’ administrative officials generally understand the agreement as not binding. Secretary of State John F. Kerry said that a Paris agreement is “definitely not going to be a treaty,” noting that there were “not going to be legally binding reduction targets like Kyoto Protocol.”[23] President Obama openly praised the agreement as the best chance to save our planet. [24] But it is still unclear whether he intends to submit the agreement to the Senate.

The agreement will be deposited at the United Nation in New York on 22 April 2016, opening for signatures for one year. It will enter into force only after 55 countries that account for at least 55% of global emissions have deposited their instruments of ratification.[25] The Paris Agreement is a landmark document. Only time will tell whether it is a real turning point for one of the greatest challenges for our world.

[1]Justin Worldland, World Approves Historic ‘Paris Agreement’ to Address Climate Change, Time (Dec. 12, 2015), http://time.com/4146830/cop-21-paris-agreement-climate/

[2]Paris Agreement, Art. 2., available athttp://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf.

[3]Id.

[4]Paris Agreement, Art.13., available athttp://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf.

[5]Victor McFarland, The Paris Climate Agreement in Historical Perspective,Humanity Journal,(Dec.15, 2015),http://humanityjournal.org/blog/the-paris-climate-agreement-in-historical-perspective/

[6]History of International Negotiation, Center For Climate And Energy Solutions,http://www.c2es.org/international/history-international-negotiations.

[7]Status of Ratification of the Kyoto Protocol, United Nations Framework ConventionOn Climate Change, http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php

[8]Hannah Chang, A Legally Binding” Climate Agreement: What Does it Mean? Why Does it Matter, General Earth Institute, http://blogs.ei.columbia.edu/2010/02/23/a-%E2%80%9Clegally-binding%E2%80%9D-climate-agreement-what-does-it-mean-why-does-it-matter/.

[9]Alden Meyer, The Copenhagen Accord: Not Everything We Wanted, But Something to Build On, Union Of Concerned Scientists, http://www.ucsusa.org/global_warming/solutions/reduce-emissions/the-copenhagen-accord.html#.Vrpp5JMrJ-U

[10]Shamus Cooke, Why Copenhagen Failed, Global Research, http://www.globalresearch.ca/why-copenhagen-failed/16612.

[11]Justin Worldland, World Approves Historic ‘Paris Agreement’ to Address Climate Change, Time (Dec. 12, 2015), http://time.com/4146830/cop-21-paris-agreement-climate/

[12]Historic Paris Agreement on Climate Change,United Nations Framework ConventionOn Climate Change: UN Climate Change Newsroom,http://newsroom.unfccc.int/unfccc-newsroom/finale-cop21/

[13]Adam Frank, Paris Climate Agreement: Success Or Failure?, NPR: Cosmos & Culture (Jan. 12, 2016), http://www.npr.org/sections/13.7/2016/01/12/462753762/paris-climate-agreement-success-or-failure

[14]Oliver Milman, James Hansen, Father of Climate ChangeAwareness, Calls Paris Talks ‘a Fraud, The Guardian (Dec. 12, 2015),http://www.theguardian.com/environment/2015/dec/12/james-hansen-climate-change-paris-talks-fraud

[15]Justin Worldland, World Approves Historic ‘Paris Agreement’ to Address Climate Change, Time (Dec. 12, 2015), http://time.com/4146830/cop-21-paris-agreement-climate/

[16]Paris Agreement, Art. 13., available athttp://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf.

[17]Id.

[18]Paris Agreement, Art. 4., available athttp://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf.

[19]Hunter Cutting, Enforcement of the Paris Climate Agreement, The Road Through Paris, http://www.theroadthroughparis.org/resources/enforcement-paris-climate-agreement

[20]Samantha Page,No, The Paris Climate Agreement Isn’t Binding, Climate Progress(Dec. 14, 2015), http://thinkprogress.org/climate/2015/12/14/3731715/paris-agreement-is-an-actual-agreement/

[21]John Vidal and Adam Vaughan, Paris ClimateAgreement ‘May SignalEnd of FossilFuelEra’, The Guardian (Dec. 12, 2015),http://www.theguardian.com/environment/2015/dec/13/paris-climate-agreement-signal-end-of-fossil-fuel-era

[22]Karoun Demirjian and Steven Mufson, Trick or treaty? The LegalQuestionHangingOverThe Paris Climate ChangeConference, The Washington Post: Power Post, https://www.washingtonpost.com/news/powerpost/wp/2015/11/30/trick-or-treaty-the-legal-question-hanging-over-the-paris-climate-change-conference/

[23]Id.

[24]White House, 2015 WL 8593591, available at https://www.whitehouse.gov/the-press-office/2015/12/12/statement-president-paris-climate-agreement.

[25]Paris Agreement, Art. 21., available athttp://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf.

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