Introduction
The United Nations Framework Convention on Climate Change (UNFCCC) and its annual Conference of Parties meetings have been important for scholars and for society at large. Climate change issues gained a remarkable degree of coverage in the news and in social media. Thus, the UNFCCC’s Kyoto Protocol and Paris Agreement are widely known by people all around the world, and they were both the subject of close analysis.
When the Paris Agreement was adopted in December 2015, I was convinced that it was a weak attempt for combating climate change from what I gathered from a quick internet search. I therefore wanted to write my dissertation about comparing the Kyoto Protocol and the Paris Agreement in terms of their effectiveness in mitigating greenhouse gases (GHG) emissions. The interesting outcome of my study was that my opinion completely changed. In my dissertation, I claimed that the Paris Agreement has a higher potential for effectiveness than the Kyoto Protocol, although it is still not enough for guaranteeing a safe future free from severe climate change effects.
I revised my dissertation as a journal article and sent it to the University College Dublin Law Review (UCD Law Review). However, in June 2017, US President Donald Trump announced his intention to withdraw from the Paris Agreement. The US’s withdrawal would substantially limit the effectiveness of the Paris Agreement because the US is the highest GHG emitter per capita. Hence, the editors of the UCD Law Review editors advised me to add a section about the impact on the effectiveness of the Paris Agreement that arose from the withdrawal of the US. I followed their advice and published the article, and was delighted to win the most outstanding article prize of the UCD Law Review in 2017. I would like to use this opportunity to thank all UCD Law Review editors for their hard work on my paper. This blog post represents a condensed form of that article.
My article concludes that the Paris Agreement with US participation is desirable. However, where the US actually ceases its participation, the Paris Agreement can still be effective. In fact, I argue that if the US government does not want to contribute to the mitigation of GHG, it does not matter if they remain in the Paris Agreement or not. This claim may sound strong and confusing, but I explain the reasons below. This post will address the effectiveness of the UN climate change regime by assessing the Kyoto Protocol and the potential of the Paris Agreement with and without the US.
The Kyoto Protocol
First of all, it is important to clarify what is meant by ‘effectiveness’. The UNFCCC Article 2, Kyoto Protocol Preamble, and Paris Agreement Article 2(1) aim at the stabilisation of GHG emissions, achieved by a reduction of cumulative GHG from the atmosphere for preventing dangerous anthropogenic interference. The Paris Agreement Article 2(1)(a) puts a more specific target and aims to achieve this goal by keeping ‘the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels’. Therefore, the effectiveness criterion is taken from these legal documents and it measures the success of GHG mitigation.
In this regard, the Kyoto Protocol has failed to be effective. The first reason is its burden sharing formula for climate change actions. The burden sharing is done according to two principles stated in the Article 3(1) of the UNFCCC and Article 3 of the Rio Declaration: the principle of equity, and the principle of common but differentiated responsibilities and respective capacities (CBDRRC). The principle of equity recognises the concept of equality and it acknowledges the different capacities and responsibilities of countries which are specified in the principle of the CBDRRC. The principle of CBDRRC means that, while the UNFCCC recognises all countries have a responsibility relating to climate change, there are differences in the historical contributions of countries to climate change. Developing countries claim that developed countries, who have contaminated more historically, should contribute more. This principle also recognises respective capabilities of countries which means that every country has different economic and technological capacities to contribute to the regime. As developed countries enjoyed carbon based economic growth in the past, and they have the technological and economical capacity, the Kyoto Protocol set binding GHG emission mitigation targets only for developed countries, which are specified in the Annex I of the UNFCCC. Moreover, the economic burden of combating climate change is also given to developed countries. The remaining countries did not have targets for mitigation and they were not expected to prepare a plan for their own intention for mitigation. This situation basically means that the Kyoto Protocol could not establish a global response to climate change. Considering that developing countries like China or India emit substantial amounts of GHG, the reduction of GHG without their involvement was not possible. Therefore, the Kyoto Protocol came into force without having the potential for effectiveness.
To encourage the developing parties to emit less, the Kyoto Protocol aimed at facilitating the transfer of environmentally sound technologies (ESTs) in order to increase their use in developing countries. This is because ESTs can be used for decreasing the vulnerability of humankind against adverse effects of climate change or mitigate GHG emissions. Mitigation technologies, like renewables, are closely linked to effectiveness concerns. To facilitate the transfer of ESTs, the Conference of Parties in the Kyoto Protocol period established a body named the Technology Mechanism. Moreover, market mechanisms were designed as they may contribute to the transfer of ESTs. However, their contribution was humble. In the end, developing countries were not satisfied by the number of ESTs transferred. At the same time, the burden sharing formula of the Kyoto Protocol made developed countries reluctant to ratify the Kyoto Protocol’s upcoming commitment period. As a result, the second commitment period of the Kyoto Protocol could not come into force due to low ratification numbers. At that point, the Conference of Parties of the UNFCCC had to decide whether it should insist on a binding agreement without the support of many countries, or create a new agreement for gathering the support of all countries. The outcome was the Paris Agreement with non-binding mitigation targets.
The Paris Agreement
The non-binding nature of the Paris Agreement has been criticised widely. However, the logic of international law is not forcing states into action; rather, it is to make states agree to certain actions. After all, we cannot imprison a state for its breach of laws. States are sovereign; they mainly do what they want to do. Therefore, consent is the most important factor for directing states’ actions. Since the vast majority of international environmental agreements do not have an enforcement mechanism, they rely on the trust relationship and the strength of international negotiations. This is not necessarily a bad feature. For instance, when a parliamentary state ratifies an international agreement, this agreement can be transferred into domestic law by the parliament. However, it does not matter if this agreement is binding or not. The important part is whether a state ratifies it and adopts it as domestic law. In terms of the Paris Agreement, its non-binding feature lead to a great success because it has 195 signatories and has been ratified by 174 parties as of February 2018. In comparison, the Kyoto Protocol’s second commitment period was ratified by 66 parties. The Paris Agreement demonstrates that multilateral cooperation for the environment is still possible.
For the Paris Agreement, every country submitted its individual mitigation targets, a policy called intended nationally determined contributions/pledges. Although country pledges are voluntary, preparing, maintaining, and implementing these pledges are shaped by binding obligations. It is mandatory that a country has to prepare a new pledge every 5 years and it has to be more ambitious than the old one. Therefore, the Paris Agreement aims at long-term effectiveness and gradual decrease in GHG emission levels. Basically, the Paris Agreement asks states to promise a level of mitigation they are comfortable with, but it also forces them to reach their own targets. Therefore, it finds a balance between binding and nonbinding obligations. More importantly, it established a global response in the fight against climate change. This is due to the fact that all countries are expected to contribute to mitigating GHG without the division of developed/developing countries. Nevertheless, developed Parties are still taking the leading role since the Paris Agreement recognises the principles of equity, and common but differentiated responsibilities and respective capabilities. As a result, the Paris Agreement is approved by a large number of states.
To monitor compliance with the pledges, the Paris Agreement has established a transparency framework and global stocktaking. The transparency framework tracks the progress of each state, and all can access this data. As a result, countries may feel responsible for complying with their pledges since other countries, non-governmental organisations, or any other actor can track their progress. This situation is known as ‘naming and shaming’. The transparency framework requires information to be provided from all states about mitigation, adaptation, finance, technology and capacity building but it requires more information from developed countries. To complement the transparency framework, a global stocktaking mechanism is established for assessing the collective progress. Stocktaking not only measures the level of mitigation, but also uses a facilitative manner for providing support for mitigation and adaptation. This will be done every 5 years informally starting in 2018, and officially beginning in 2023. Furthermore, a mechanism to facilitate implementation and promote compliance was created. This mechanism consists of an expert-based committee, which will report to the Conference of Parties annually in a transparent, and non-punitive manner. Lastly, it revised methods for transferring ESTs and the Technology Mechanism under the Paris Agreement. Although it is not possible to say that this revision will eliminate all problems of these methods, the Paris Agreement attempts to improve them. As a result, it appears to be a well-designed agreement with a better capacity for contributing to the mitigation of GHG than the Kyoto Protocol. In fact, if all countries implement their Paris pledges, global temperature increase would be approximately 2.7 °C from pre-industrial levels by 2100. However, if the UNFCCC did not aim at mitigation of GHG emissions, global temperatures would increase between 4.1°C - 4.8 °C from the same levels.
Paris without Washington
All these assumptions for the Paris Agreement are valid under the assumption that the US participates, since it is one of the largest emitters. What would happen if the US ceases its participation? First of all, as mentioned before, states contribute to environmental regimes as much as they want. So, if the US government does not want to contribute to the Paris Agreement, there is no difference between it staying in the Paris deal or not. In fact, pledges are non-binding and if they do not want to comply, they will not. However, it is undebatable that a US government with a strong desire for combating climate change would be very beneficial for GHG mitigation. Indeed, its withdrawal would add 0.4°C increase in the global temperature levels by 2100. Secondly, low-carbon energy production and development has been supported for decades. Indeed, countries have considered studies which suggest that if GHG emissions are not tackled, the cost of climate change effects would be higher than any climate adaptation costs (http://www.wwf.se/source.php/1169158/Stern%20Summary_of_Conclusions.pdf).
Now, many countries, companies, and industries consider this opportunity and invest accordingly. Today, investment in low-carbon energy production methods is higher than the investment in fossil fuel. It is not economically viable for actors to change this trajectory. Indeed, many global US companies like Apple, Google, Unilever or Microsoft, and several US States announced that they want to contribute to the Paris Agreement in any event. Therefore, it is legitimate to expect many actors to continue their existing plans for low-carbon development. Moreover, since the pledges are not binding there is no strong incentive for countries to leave the Paris Agreement even after the US’s withdrawal. In fact, big emitters like China and the European Union clearly stated that they will remain in the deal and they are not open for re-negotiating the terms of the Paris Agreement to convince the US. This is partially because the US was delaying a consensus in the Conference of Parties. Without it, China and the European Union emerge as new leaders and countries are hoping for smoother negotiations. Lastly, international trade may play a role in pushing the US to consider the Paris Agreement deal again. Former French President Nicolas Sarkozy suggested that he would demand a carbon tax at the European border for US products if the US doesn’t apply environmental rules. If taxes for GHG emissions are imposed on US companies, it would be a strong incentive for staying in the Paris Agreement.
All these show that there is no clamour to dissolve the Paris Agreement, the US government’s views notwithstanding. In fact, even Syria, who was the only non-signatory country, ratified the Paris Agreement on 13 December 2017. This leaves the US as the only country who wants to be outside of the Paris deal. However, many actors inside the US have already pledged to mitigate their GHG emissions. Therefore, it is very likely that the Paris Agreement will be effective, and the US withdrawal will not substantially harm the whole Paris deal.
Conclusion
Despite the success of the Paris Agreement, if we cannot keep global warming to a maximum of 2.0 °C, the outlook of the world’s future is unclear. Therefore, the UN climate change regime overall is not effective enough. Furthermore, it is not guaranteed that all countries will reach their mitigation targets. Nevertheless, the Paris Agreement gathered the will of almost all states in the world, although the US wants to withdraw it. This achievement gives hope for improving actions and establishing more ambitious mitigation targets for the future.
