SUMMARRY SUBMISSION – 16-02-2021
The Paris Agreement on Climate Change
The pa marks a departure from the strategy that informed international climate
policy leading up to and following the adoption of the Kyoto Protocol, namely
to define absolute and economy-wide emission reduction targets, and requiring
only a limited number of industrialized countries to take on these targets. The
pa’s design acknowledges, by contrast, that developed countries must take the
lead, but cannot solve the problem of climate change on their own. So the key
challenge was and is how the UNFCCC’s ultimate goal of ‘stabilization of
greenhouse gas concentrations in the atmosphere at a level that would prevent
dangerous anthropogenic interference with the climate system’ (Art. 2
UNFCCC) can be translated into an equitable and fair burden sharing. State
parties, non-governmental organizations, and international organizations have
proposed a wide variety of approaches to assign emission reduction targets and
mitigation burden on the premise both of effectiveness and justice. However,
achieving this involves an immensely complex equation involving stringent
obligations, global participation, and compliance.48 Fixing targets based on
historic emissions alone is not sufficient and a fair system has to take into
account not only past emissions but also projections of future emissions.
Considering the wide array of national circumstances, defining mitigation
obligations along particular, pre-defined groups of countries has become
increasingly difficult. With the pa, international climate negotiations have now
officially given up on any attempt to categorize countries and allocate specific
emission reduction targets. Instead it relies exclusively on voluntary mitigation
contributions. The pa hence marks a turn from distributive bargaining strategies.
This represents the view that ‘sharing the pie’ negotiations are inherently
problematic and that for distribution problems gradual solutions have to be
found on the basis of trust and commonly agreed principles. Consequently, the
pa relies on procedural norms that while not formulating mandates may create
trust and greater acceptance of the outcome. In that sense the pa is well aligned
with the growing body of global administrative law that focuses on
administrative structures, on transparency, on participatory elements in the
administrative procedure, on principles of reasoned decision-making, and on
mechanisms of review. It is hoped that procedural credibility will build trust and
help (correctly or not) to create incentives for Parties to work towards meeting
the goal of the pa. On the other hand, a system is less predictable when there is
less clarity about how responsibilities are to be shared between defined
categories of countries based on specific criteria.
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The Risk: Voluntary Mitigation and the Collective Action Problem
Climate change represents a collective action problem par excellence. The
effects of GHG emissions (and the benefits of reducing emissions) are globally
distributed, whereas the costs of reducing emissions (and the benefits of
business-as-usual activity) are concentrated. Although maximum benefit would
be derived from all countries reducing GHG emissions to the full extent of their
capabilities, an individual country risks taking on the cost without deriving the
benefit where other major emitters do not reciprocate, or choose to freeride.
With GHG emissions still inextricably linked to key economic sectors, often in
global competition, few countries are willing to take this risk. The purpose of an
international treaty is, in part, to create mutual confidence in reciprocity,
diminish the risk of free-riders and overcome the collective action problem
through enhanced coordination. A large body of literature exists attributing the
failure of the international climate regime to the absence of a mechanism to
perform this function, and multiple proposals have been put forward for treaty
features that could rectify this. Whether the Paris Agreement represents a step
forward in addressing the collective action problem is contested (including
among the authors of this paper). Yet it is possible to note that whereas
collectively negotiated country specific targets would typically work backwards
from a desired aggregate emissions ceiling, country specific targets volunteered
on a bottom-up basis are less likely to be sufficiently ambitious, in the
aggregate, to meet global goals. The large emissions gap between NDCs as
currently proposed and what is required to avoid more than 2 degrees of
warming is evidence of this problem. Further agreements between major
emitters will be required to bridge it. On a positive note, the Paris Agreement is
sufficiently flexible that it creates the space within which to negotiate such
bilateral or plurilateral agreements.
The pa provides a common framework within which individual countries (or
alliances of countries) are invited to define NDCs taking into account the
overall goal of the Convention and the Agreement as well as their own
capacities. The hope is that with increased transparency and an ambitious
overall target, countries will step forward with ambitious national plans. The
risk however, is that individual country contributions fall short of the overall
SUMMARRY SUBMISSION – 16-02-2021
goal and that the pa remains a shell without sufficient action and support, unable
to address the collective action problem of climate change. Addressing this risk
will require a new international effort to form coalitions and agreements with
which to populate the pa in the months and years ahead. After 23 years of the
UNFCCC, and six years of post-Copenhagen negotiations, a lot remains to be
decided. This will be of concern to those countries, particular smaller
developing countries most exposed to climate change and least able to manage
its early effects. It is also of broader concern, given the pace with which global
emissions must peak and decline to avoid dangerous climate change. All of
which is to say that the pa, though a first step, leaves no room for complacency,
and that additional action must follow at the domestic and international level as
a matter of urgency.
Submitted by-
Shyamli Shukla
B.A. LLB (Hons.) VIII Semester
Amity Law School
