The Paris Agreement at Three Years Old: The Doctor’s Report

by Sue Biniaz [1]

Summary:

The patient, Paris, is a three-year-old international climate change agreement of nearly 200 proud parents. Paris’ arrival, after a prolonged gestation, was greeted with much fanfare. Despite low birth weight, a potentially traumatic experience in infancy, and some parental behavioral issues, Paris’ vital signs are currently within normal range.

Notably, Paris recently hit two important developmental milestones. First, the Parties finalized various nuts-and-bolts guidelines and procedures to effectuate the Agreement. Second, they carried out an extensive process aimed at assessing current climate-related efforts and promoting the enhancement of ambition.

Socially, Paris is thriving. It has had a significant influence on its peers. Its goals are now the common reference points for climate-related efforts, whether or not formally under the Agreement and whether carried out by countries, cities, businesses, or other actors.

Based on my examination, however, the patient’s longer-term prognosis is uncertain, and continued vitality should not be taken for granted. Proper care and nurturing should be exercised to prevent anemia. In addition, Paris’ parents should work more constructively together to ensure that Paris will thrive.

Patient History: Gestation/Birth

The patient, Paris, was born on December 12, 2015, at the 21^st meeting of the Parties to the UN Framework Convention on Climate Change (the Convention). Paris’ gestation and birth were atypical in two ways.

First, Paris had an unusually long gestational period. Strictly speaking, it took only four years for Paris to develop, i.e., from the adoption of the Durban negotiating mandate in 2011 until completion of the agreement in 2015. However, it would not be an exaggeration to say that it actually took decades for Paris’s distinct DNA to emerge. Paris’ three older siblings all had shortcomings:

• The 1992 UN Convention on Climate Change, while an important foundational instrument that attracted widespread participation, was a “framework” convention that was quite general in its expectations.
• The 1997 Kyoto Protocol had very specific requirements but, with its stringent regulatory approach that excluded developing countries, it failed to attract the participation of the United States, while China, then the world’s second largest emitter of greenhouse gases, had no meaningful commitments.
• The 2009 Copenhagen Accord, elaborated as the Cancun agreements, attracted much broader participation than Kyoto (including both the United States and China) and improved Parties’ reporting and review, but was perceived as being insufficiently ambitious and allowing too much national discretion.

Paris enjoys the best genes in the family:

• It sets an ambitious global temperature goal, as well as mechanisms to promote its achievement, including individual Party reporting and review, regular global assessments of progress, and regular updating of emissions commitments.
• It provides for ample national discretion (most notably, through the ability of Parties to design their own “nationally determined contributions” or “NDCs,” for short), while overlaying such discretion with a variety of internationally agreed guidelines.
• It strikes a balance between legally binding commitments (such as those on reporting) and non-legally binding commitments (such as those on achievement of emissions targets).
• Commitments apply to all Parties, with the exception of those related to finance, which continue existing commitments of developed countries; at the same time, Parties’ different national circumstances are acknowledged through various forms of accommodation and flexibility.

Second, despite a long gestation, Paris was “born” prematurely. Though adopted in 2015, Paris was not expected to take effect formally any earlier than 2020. This timeframe, which was intended to coincide with the end of the Kyoto Protocol, flowed from the Durban negotiating mandate. Until the last minute of the Paris conference, the prevailing assumption was that the agreement’s entry into force would be no earlier than 2020 — which meant that many provisions of the agreement were designed with that timeframe in mind.

The 2020 limitation disappeared from the text at the last minute, but there was no opportunity to adjust the related provisions. Thus, while the deletion made it possible for Paris to become official shortly after fifty-five countries meeting a certain emissions threshold had joined it (i.e., November 4, 2016, instead of sometime in or after 2020), the early official start date resulted in certain irregularities. For example, although the Agreement provided for most of the operationalizing guidelines to be approved soon after entry into force, at that point most countries were not yet Parties and would have been unable – at least formally – to participate in decision-making. In addition, the guidelines were not even close to being ready. As a result, it was agreed to postpone their completion until 2018.

Finally, I note that Paris’ birth weight was decidedly low. A key goal of the Agreement is to hold the increase in global average temperature to “well below” 2 degrees C. (and to pursue efforts to limit it to 1.5). However, the initial nationally determined contributions of the Parties, in the aggregate, were estimated to put the world on track to an increase of, at best, 2.7 degrees. Paris wisely took a long-term approach, including regular global reviews, subsequent updating of nationally determined contributions, and an expectation of increased ambition over time; thus, notwithstanding the insufficient first offerings, Paris is set up to avoid a failure to thrive. As discussed below, it is too early to tell whether, over time, Paris will in fact grow to overcome its initial weakness.

Patient History: Potentially Traumatic Experience

Paris has many parents. Among these, the United States was one of the most attentive – a strong champion of bringing the agreement to life and a devoted nurturer during infancy. However, in mid-2017, it announced that it intended to abandon Paris and would immediately stop implementing its Nationally Determined Contribution. It criticized the child on multiple, unsubstantiated grounds and, particularly confusing to both Paris and the other parents, stated that it might consider staying around if Paris were to change in unspecified ways.

It initially appeared that the announcement of abandonment might be life-threatening, given Paris’ tender age. However, while certainly not a positive development, the impending parental void did not have the expected debilitating impact, at least not in the short term. The other parents rallied in defense of Paris, making clear that they had no intention of following in the U.S. footsteps with respect to either the agreement or the implementation of their emissions commitments. Further, domestic surrogates in the form of U.S. states, cities, businesses, and other actors stepped forward in large numbers to signal their support for Paris and the intention to do their part to carry out emission reductions in line with Paris’ objectives. Most prominent in this regard are the U.S. Climate Alliance, made up of state governments, and the “We Are Still In” initiative, involving all manner of governmental and non-governmental actors.

Assuming the U.S. abandonment of Paris actually takes place, it is unclear when, if at all, the United States will resume its parental responsibilities. It is also uncertain what effect the current U.S. neglect will have on Paris in the longer term. The other parents may or may not be willing to continue with robust caregiving when the United States is not carrying its weight.

Social Skills

Paris is a clear leader. In addition to its role as a focal point for the non-State climate efforts, international agreements and organizations routinely refer to Paris, including its temperature goal; some have adopted specific measures in light of Paris, e.g., the International Civil Aviation Organization’s offset mechanism (“CORSIA”) and the International Maritime Organization’s Initial Greenhouse Gas Strategy (which specifically refers to a reduction in carbon dioxide that is consistent with Paris’ temperature pathway).

International financial institutions, even beyond the Paris-related Green Climate Fund, are using Paris as a reference point in relation to funding decisions. In addition, renewed consideration is being given to the nexus between climate actions and the international trade regime. While the World Trade Organization has not yet taken specific steps driven by Paris, that is likely due, at least in part, to issues unrelated to climate change; free trade agreements outside the WTO are beginning to reference Paris in their environment-related provisions.

Paris’ influence has extended beyond substance in at least two ways.

• First, many point to Paris as the epitome of “multilateralism,” i.e., the ability of the international community to come together and tackle a vital, yet enormously challenging, issue. Particularly now, in a period of attacks on various international institutions, Paris stands for something larger than a response to climate change.
• Second, others are looking to Paris’ design. Paris reflects an array of features that are atypical of most agreements, e.g., core commitments that are determined by each Party in line with its particular circumstances; a non-legally binding approach to such commitments, coupled with a robust “transparency” framework; a long-term goal and regular review and updating of commitments toward its achievement over time; approaches to “differentiated” treatment of Parties that vary from topic to topic; and the engagement of so-called “non-Party stakeholders” (e.g., non-national governments, businesses) in climate action through various platforms and activities. Both the CORSIA aviation offset mechanism and the Montreal Protocol’s Kigali amendment on hydrofluorocarbons reflect creative approaches to differentiation that appear to take inspiration from Paris’ innovations.

Developmental Milestone #1: The Paris “Rulebook”:

On December 15th, 2018, at the meeting of the Parties in Katowice, Poland, Paris reached a significant developmental milestone, namely issuance of the guidelines and procedures to elaborate various provisions of the Agreement. These elaborations touch on several aspects of the Agreement, including mitigation, adaptation, transparency, finance, and others. Many of them address issues related to Parties’ communication of information (such as the types of information needed for a nationally determined contribution to be clear) and the review of information (such as technical expert reviews of individual Party reports on how well they are progressing on their NDCs).

The Parties succeeded in developing a pragmatic “rulebook” (which has been dubbed the “Katowice Climate Package”) that should advance Paris’ real-world implementation. It is not surprising that the issues raised during its negotiation mirrored, in some ways, those raised on the road to Paris and, now as then, required finding the sweet spot along more than one continuum – binding vs. non-binding, detailed vs. general, extensive vs. modest, etc.

At the same time, I note – and it is of some medical concern — that, while the Parties ultimately reached agreement, the path to agreement was not as healthy as it should have been: it was inefficient as a matter of time management and rocky as a matter of substance.

My diagnosis is as follows:

The inefficiency was partly attributable to normal negotiating dynamics, particularly prevalent in the climate regime, whereby delegates cling to their positions and see little need to compromise until the very end; in part, however, the inefficiency was due to petty procedural moves and intentional wasting of time arising from some quarters. As a result, certain core issues were not tackled until well into the third year of negotiations, and texts did not shrink to manageable sizes until far too late in the process.

In terms of substance, here too some of the difficulties appeared to derive, at least in part, from reasonable causes. For example, many of the issues left for future resolution were highly technical and complicated. (In some cases, this was precisely why, in Paris, the Parties decided to leave the details for future resolution.) It was also challenging to organize the negotiations; the topics were complex enough to require individual attention, yet there were many inter-linkages among them that warranted cross-cutting consideration (e.g., all provisions related to providing information, all provisions related to review).

Moreover, several debates involved legitimate differences of view that fell within the boundaries expressly left open by the Agreement. For example:

• Where Paris authorized guidelines to elaborate a particular provision, Parties were entitled to have the view that such guidelines should be specific or general, long or short, etc.
• Where Paris authorized guidelines to be either legally binding or not, Parties were entitled to have the view that they should be one or the other, or a hybrid.
• Where Paris authorized the inclusion of “flexibility” in the transparency framework for those developing countries that need it in the light of their capacities, Parties were entitled to have different views on the extent to which various aspects of reporting and review implicate capacity and, where they do, what the extent of flexibility should be.

Parties’ respective views on these and other issues were undoubtedly informed, at least in part, by their conception of the Agreement, i.e., what they perceived as its basic “identity.” All Parties would likely acknowledge that Paris is a hybrid of a “bottom up” approach (providing for significant national discretion) and a “top down” approach (providing for some internationally determined elements). However, those emphasizing the former nature of the Agreement could reasonably have been expected to favor a lighter set of guidelines, while those emphasizing the latter could reasonably have been expected to support a more extensive, more rigorous set of guidelines. While Parties may have disagreed, sometimes passionately, about where to land on the continuum of extensiveness/rigor, these debates were generally within the bounds of what the Agreement contemplated.

However, in contrast to reasonable differing viewpoints, some proposals went beyond the bounds of Paris — in clear contradiction of its provisions. Whether such positions were motivated by the opportunity to gain leverage, push ultimate outcomes toward one end of the spectrum or the other, or scuttle the negotiations entirely, is difficult to know. However, as there was no “judge” presiding over the process to rule certain proposals beyond the permissible scope of debate (or what was in the best interests of the child), such proposals had a negative effect on the negotiating atmosphere and made it much more challenging to reach agreement.

I attach to this report a more detailed analysis of the “rulebook” outcome.

Developmental Milestone #2: The Talanoa Dialogue

As noted, at the time Paris was born, it was widely recognized that the Parties’ nationally determined contributions, in total, would fall short of the Agreement’s global temperature goal and that enhanced ambition over time would be necessary. This realization helped to solidify the need to design Paris as a long-term living instrument, with regular reviews and updates.

Because no one expected the agreement to be in effect before 2020, it provided for the first aggregate assessment (the “Global Stocktake”) to take place in 2023, with updating of nationally determined contributions to follow. In 2015, the year 2023 seemed far off and, in any event, quite late to be beginning the process of updating NDCs containing 2025 targets. As a result, the Parties set up an earlier set of steps in the Paris “decision” – which kicked in immediately, before the official entry into force of the Agreement.

Among other things, the decision called for a “facilitative dialogue” to be held in 2018. It was to “take stock of the collective efforts of Parties in relation to progress towards the [global temperature goal] and to inform the preparation of nationally determined contributions….” The Parties subsequently agreed to name it the “Talanoa Dialogue,” after a type of participatory dialogue popular in Fiji (the Presidency of the COP at the time).

The Talanoa Dialogue involved an impressive array of events throughout 2018, including the solicitation of input from both Parties and non-Party stakeholders and numerous consultative sessions. The “Talanoa Call for Action,” prepared by Fiji and Poland (the outgoing and incoming COP Presidencies, respectively), cites a “race against time” and asks not only Governments but everyone to act with urgency to preserve “life on earth as we know it.”

Although it is too early to know the extent to which the Talanoa Dialogue will “inform” Parties’ future NDCs, it is widely viewed as having been successfully carried out. Process-wide, it was extremely inclusive of diverse views from a wide range of actors, including Parties, non-national governments, businesses, and others. Ambition-wise, while civil society and others would have welcomed more specific announcements and an explicit process, there were some real-time expressions of commitment to enhanced climate action, such as a statement from the so-called “High Ambition Coalition” of Parties that they intend to step up their ambition by 2020. Further, precedent-wise, the Talanoa Dialogue may be a useful model for other international processes that seek non-confrontational input.

Patient Instructions:

Paris is in reasonably good health, given its many challenges. However, going forward, there are two areas that warrant serious attention and monitoring.

Ambition:

Paris has healthy bones, which have the potential to support future growth. It sets the desired temperature goal and various commitments, mechanisms, and procedures for promoting its achievement. Further, it does so in a manner that attracted near universal participation. However, good bones are not enough. A healthy body requires strong muscles and functioning organs, and it is not guaranteed that Paris will develop these. Rather, reaching the necessary level of ambition will depend upon a variety of factors, including public awareness and support, technological options, and, perhaps most importantly, political will. Much effort both inside and outside the Agreement will be necessary to get ambition on track.

In the short term, the decision accompanying the Paris Agreement is relevant. In addition to establishing the process that became the Talanoa Dialogue, it requested Parties with 2025 emissions targets in their initial NDCs to communicate new NDCs by 2020 and Parties with 2030 targets to either recommunicate, or update, their initial NDCs by 2020. A “request” is obviously not a requirement. Yet there are other reasons to believe that at least some Parties will use the opportunity to enhance their contributions. There is an obvious ambition gap, reflected most recently in the IPCC’s report “Global Warming of 1.5^o C.” In addition, substantial political pressure can be anticipated, including the expectation that the UN Secretary General’s Climate Summit in September 2019 will call for enhanced climate action by 2020. This might involve updating an NDC, the preparation of a mid-century, low-emission strategy, and/or other ambition-increasing measures.

Behavior:

Even by three-year-old standards, Paris’ parents need to work more constructively together if their child is to flourish. The parents can reasonably disagree; no one expects unanimity of view, certainly not at the start of any negotiating process, given all their different national circumstances. However, the climate challenge is far too serious for backtracking on previously agreed points or procedural maneuvers that obstruct, rather than facilitate, progress. Paris’ parents are urged to exercise additional self-discipline.

Additional Report on Selected Paris “Rulebook” Issues  

Nationally Determined Contributions:

• The Agreement, as noted, allows Parties to design their own mitigation contributions, rather than negotiate them. In that sense, Paris accords Parties with a substantial degree of national discretion. At the same time, the Agreement called for the elaboration of several internationally agreed guidelines with respect to various aspects of NDCs.
• One issue under negotiation was the extent to which the guidelines should lay out certain “features” of NDCs. Various proposals for features (such as that all NDCs should be either quantified or quantifiable) had been rejected on the road to Paris. It therefore seemed unlikely that, upon revisiting the issue, the Parties would be any more able to agree. Indeed, the guidelines do not go beyond what was agreed in Paris.
• Another NDC-related issue involved the elaboration of Paris’ requirement that each Party accompany its NDC with the information necessary to make it clear. The Paris outcome set out a rather short list of types of information that “may” be necessary for clarity; the issues under negotiation post-Paris included, e.g., whether/how to elaborate the list and how mandatory it should be. The resulting guidelines set out a substantially more detailed list and obligates each Party to communicate the listed information “as applicable” to its NDC.
• Paris requires Parties to “account” for their NDCs, including to avoid “double counting.” In Paris, only minimal guidance was included; as such, the Parties were charged with adopting further accounting guidance. Katowice substantially elaborates the guidance, which includes a mixture of that which is internationally specified and that which provides certain national discretion.

Adaptation:

• In contrast to mitigation action, Paris does not require that Parties communicate their adaptation actions. Rather, Parties may choose to do so and, if they do, they have choices with respect to the vehicle they use for such communication, e.g., as part of an NDC, a separate document.
• Paris left open several rather technical issues concerning adaptation, including guidance regarding communications and Parties’ reporting on adaptation.
• Katowice substantially elaborates Paris, while continuing the Paris approach to adaptation of according wide discretion to Parties.

“Market” Mechanisms:

• Paris avoids the term “market mechanisms,” but includes an article that addresses such mechanisms (as well as “non-market mechanisms”).
• Like the Paris Agreement as a whole, the provisions combine elements that are determined nationally with those that are determined internationally.
• The provisions addressing international transfers of “mitigation outcomes” is at the “national discretion” end of the spectrum, with international guidance authorized only on the “accounting” aspects of such transfers (not whether or how they can take place). It was to include accounting guidance on the avoidance of “double counting,” such as the situation where two Parties purport to use the same reduction towards achieving their NDCs.
• The provisions establishing a mechanism to give an international seal of approval to particular types of emissions reductions (a new version of the Kyoto Protocol’s Clean Development Mechanism) is at the international end of the spectrum, with internationally approved rules, modalities, and procedures – to be applied not by individual Parties, but by an international body.
• While Katowice came close to reaching agreement on all of these aspects, it was ultimately not able to, largely due to differences over what constitutes “double counting.” The Katowice outcome puts off resolution of all the issues until the 2019 COP, while including a small set of related reporting requirements in the transparency guidelines.

Transparency Framework:

• The transparency framework is a key aspect of the Agreement. It includes provisions related to both reporting by Parties (e.g., on their greenhouse gas emissions inventories and how they are progressing in carrying out their NDCs) and the review of such reporting.
• Paris left many issues for further elaboration, including specifically what needs to be reported and how reviews will be carried out.
• In addition, Paris moved beyond the existing reporting and review system under the Convention – which is divided along developed/developing country lines – to a system that is “common” but provides “flexibility” to “those developing country Parties that need it in the light of their capacities.” Thus, an additional issue left for elaboration was how exactly flexibility would be accorded, to whom, and for how long.
• The outcome sets forth detailed reporting requirements, including, e.g., on inventories, NDC implementation/achievement, and support provided. It also spells out the two review processes, one a “technical expert review” and the other a “facilitative, multilateral consideration of progress” involving question-and-answer sessions with rotating Parties at the center.
• “Flexibility” is carefully balanced so as to maintain a “common” transparency system applicable to all Parties, while accommodating those developing countries with capacity constraints with respect to particular requirements of that system.

Implementation/Compliance Committee:

• • Like many international environmental agreements, Paris established a committee to look at Parties’ implementation of, and compliance with, the Agreement. While many aspects of the committee were agreed in Paris, such as its nature (facilitative), function (non-punitive), and composition (twelve members), certain issues, including how issues would come before the committee, and the committee’s relationship to the transparency framework, were left for future resolution.
  • Among other things, the Parties agreed in Katowice on four paths to the committee: 1) self-referral, i.e., any Party may initiate the committee’s work with respect to its own implementation or compliance; 2) at the request of the Parties collectively or on its own motion, the committee may review issues that are “systemic,” such as, hypothetically, widespread late reporting; 3) the committee will consider certain extreme cases, such as where a Party has not submitted any nationally determined contribution or any reporting; and 4) the committee may, in specified circumstances and with the consent of the Party concerned, take up cases where the transparency process indicates “significant and persistent” inconsistencies between reported information and the transparency guidelines.

[1] A former Deputy Legal Adviser at the U.S. State Department, Susan Biniaz was the lead climate lawyer and a climate negotiator from 1989 until early 2017. She is currently a Senior Fellow at the United Nations Foundation, an Associate Researcher at the French think tank IDDRI, a Senior Fellow and lecturer at the Yale Jackson Institute on Global Affairs, and a Senior Adviser at the Center for Climate and Energy Solutions.