Climate justice can grow out of science and law, but it requires political leadership to take these twin dictates seriously
Countries submitted their first round of national climate targets — Nationally Determined Contributions (NDCs) — in 2015. They are legally obliged to increase their individual and cumulative level of climate ambition in 2020. This is not just a matter of advocacy. It is a legal requirement in the Paris Agreement.
Article 4.9 of the agreement states:
“Each Party shall communicate a nationally determined contribution every five years […]”.
That is not the full text of the article, but it is the crux of the obligation. The point is to get countries into the habit of thinking systematically about the climate in their domestic planning processes.
Article 4.3 gives direction to this planning process. It states that:
“Each Party's successive nationally determined contribution will represent a progression beyond the Party's then current nationally determined contribution and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.”
This means that parties must continuously step up their climate efforts — they cannot keep submitting the same targets every five years and over, or submit less ambitious targets than their previous efforts.
There is a legalistic argument made in some quarters that the agreement does not require new targets in 2020. This argument points to the full text of Article 4.9:
“Each Party shall communicate a nationally determined contribution every five years in accordance with decision 1 / CP21 and any elevant decisions of the Conference of the Parties serving as the meeting of the Parties to this Agreement and be informed by the outcomes of the global stocktake referred to in Article 14.”
We will come to the distinction between the Paris Agreement and the Decision 1 / CP21(aka the ‘Paris Decision’) in a bit. To begin with, the relevant paragraphs of the Paris Decision are as follows:
“23. Requests those Parties whose intended nationally determined contribution pursuant to decision 1 / CP.20 contains a time frame up to 2025 to communicate by 2020 a new nationally determined contribution and to do so every five years thereafter pursuant to Article 4, paragraph 9, of the Agreement;
“24. Also requests those Parties whose intended nationally determined contribution pursuant to decision 1/CP.20 contains a time frame up to 2030 to communicate or update by 2020 these contributions and to do so every five years thereafter pursuant to Article 4, paragraph 9, of the Agreement; […]”
Anyone pointing to these paragraphs to not set better climate targets in 2020 has a very difficult case to make. Regardless of whether your 2015 NDC has set a target for the year 2025 or the year 2030, these paragraphs (read with Article 4 of the agreement) highlight 2020 as a year to increase ambition.
One could split hair over the difference between communicating a new NDC or updating the 2015 NDC, but there is no legal argument for any country to just sit on its hands in 2020.
An anti-ambition advocate could also point to the first words in these paragraphs — “requests” — to argue that this is not a binding requirement, merely a nudge. That ignores the point from which we started — Article 4.9 of the Paris Agreement, which these paragraphs also refer back to. That Article begins with the words “Each Party shall…”, which are commonly understood as creating a binding legal obligation.
There is a common misconception that the agreement is not legally binding — that is simply not true. There is no legally binding target, but the obligation to regularly set national targets is binding. There is a less common misconception that treaties are binding while decisions are not binding — that is also not quite true.
Decisions made within the authority of pre-existing treaties can have legal force, depending on their language. The Paris Decision was taken by the Conference of Parties to the UN Framework Convention on Climate Change, so it is (at first glance) within the authority of a pre-existing treaty.
Besides, the language of the Decision refers back to the legally binding Paris Agreement, so it cannot be used to dilute the legally binding nature of that agreement. Whichever way one looks at it, the ouroborian structure of the agreement and the Decision does not allow escape from the obligation to increase ambition in 2020.
The second legalistic argument based on the full text of Article 4.9 is that the NDCs must be informed by the global stocktake. The ‘GST’ is an accountability mechanism outlined in Article 14 of the agreement. It periodically takes stock of the globe’s mitigation efforts, to inform the next round of targets. The first full GST is scheduled for 2023.
NDCs are supposed to take into account the outcome from the GST process (when it is available), but there is nothing that legally delays the next round of NDCs to after 2023. Besides, there has already been a proto-stocktake.
The Talanoa Dialogue was initiated by paragraph 20 of the Paris Decision for the express purpose of informing the preparation of NDCs. It concluded with a synthesis report and a Talanoa Call for Action in 2018. That should set up new or updated NDCs to be submitted in 2020, even if the narrow letter of the law is adhered to.
In the second part of this piece, we look at the broader relevance of this legal back and forth.
Why the legality of the Paris Agreement matters
Anyone looking at this discussion without their legalese-tinted glasses could justifiably ask — why did the Paris outcome take such a convoluted form? The general answer, as with most legal contortions, is that form follows politics. A specific definite explanation is impossible, but here are some informed guesses.
First, climate politics is highly influenced by United States (US) domestic politics. Technically, the US Constitution requires new treaties to be ratified by two-thirds of the US Senate. US constitutional law recognises some situations in which a president can conclude international ‘executive agreements’ without Senate advice and consent, which is what President Barack Obama relied on while binding the US to the Paris Agreement.
These exceptions can only be stretched so far, so some ‘constructive ambiguity’ was probably seen as useful regarding whether the Paris outcome was a new treaty or simply an extension of the UN Framework Convention on Climate Change (which was ratified by the US Senate). The use of ‘shall’ in the agreement and ‘requests’ in the Decision likely performs a similar function.
Second, the distinction between NDCs with 2025 targets and 2030 targets is / was useful, to a very limited extent, in maintaining some semblance of common but differentiated responsibility. The US position coming into Paris was that all countries must take on targets, which was difficult to reconcile with the long-running opposition of many developing countries to diluting the developed-developing distinction.
The US is one of very few countries to use a 2025 target year in its NDC; its NDC is also unique (even among developed countries’) for its irresponsibly low level of climate ambition. The text of the agreement does not create a distinction between NDCs based on target year, but the text of the Decision does (“new” in paragraph 23 versus “updated” in paragraph 24).
In theory, therefore, reading the agreement and Decision together indicates that the US has a higher obligation to raise ambition in 2020 than countries with a 2030 target (like India or China). But the US violating the agreement does not imply that countries — even developing ones — can adjust their legal obligations downward.
For anyone interested in equity, that is a slippery slope — it would mean that developed countries with 2030 target years like the European Union, Japan, and Australia also have no obligation to improve their targets.
A broader question is — why does it matter if any particular text in the Paris outcomes is legally binding or not? This is particularly relevant, considering that the compliance mechanism in Article 15 of the agreement is largely toothless — it is required to be “non-adversarial and non-punitive”.
The general answer is that states and governments care quite a bit whether an obligation is legally binding or not — the Trump administration would not be rushing to withdraw from the agreement if it was just so much paper. As to why they care, there are multiple theories of international law, but here is a scenario that illustrates why they might.
Suppose a country announces that it will apply a “carbon tax” on the border on any imports from a country which has ratified but violated the Paris Agreement. That would almost immediately spark off a trade dispute, which could go to the World Trade Organization’s dispute settlement system. That system has problems of its own, but it is not toothless.
The WTO Panel and/or Appellate Body would have to determine whether the country can justify its carbon tax under some prescribed exceptions. These bodies studiously avoid explicitly determining the legal content of non-WTO Agreements. Indirectly, however, the answer to whether or not something is an obligation under the Paris Agreement would likely factor into their thinking.
One could see, for example, the WTO system drawing a distinction between setting targets, and meeting targets. The obligation to meet targets in the Paris Agreement is questionable, but a country that stays in the agreement and refuses to even set targets? That may just be enough to legally justify a border carbon tax.
There are many international legal regimes which are concerned with questions about climate change — the Human Rights Committee recently issued a decision on whether countries are required to admit climate refugees. Even the possibility of that kind of action sets governments on edge — which at least partly explains the wrangling about legal and non-legal.
The broadest question of all is — is settling the legal question really going to make a difference to the level of ambition we see this year? The unsatisfying answer — yes and no. No, because it is clear that countries will base their decisions to submit new or updated NDCs primarily on their own economic and strategic interests, with the legal question playing a very limited role.
But settling the legal question does add some clarity to defining the ‘national interest’. The obligation to submit an NDC is pretty much the core of the agreement. If that can be set aside without consequence at the first instance, despite being legally binding, then let us be clear about what that means — the agreement is dead.
That then brings up the question of whether the big historic polluters can be convinced to accept some other stronger formula for target setting. The answer to that question will be a big factor in whether we are prepared to move past the agreement.
In any case, the science is clear — crossing the 1.5 degrees Celsius threshold of warming will be dangerous for vulnerable communities, much more so than previously thought. The initial NDCs were submitted with a 2°C threshold in mind, they are now lagging behind the best available science. That scientific clarity did not emerge purely from curiosity and grant funding.
Small island states fought to include the 1.5 degrees Celsius threshold alongside the 2°C threshold in Article 2 of the Paris Agreement, and fought to have the Paris Decision (in paragraph 21) request the Inter-governmental Panel on Climate Change prepare a “a special report in 2018 on the impacts of global warming of 1.5°C”. The push to action in 2018 originated in legalese negotiated in 2015.
Climate justice can grow out of science and law, but it requires something more — political leadership to take these twin dictates seriously.
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