The 25th negotiating year by the UN Framework Convention on Climate Change’s (UNFCCC) Conference, held in Madrid, Spain, from 2 to 13 December 2019, also known as COP25, failed to make a breakthrough.

The conference incorporates the 25th Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC), the 15th meeting of the parties for the Kyoto Protocol (CMP15), and the second meeting of the parties for the Paris Agreement (CMA2).

Its aim was to achieve the necessary global decisions to implement Article 6 of the Paris Agreement on the creation of an international carbon trading system points to some glaring structural – and not just political – deficits in the international system.

Article 6 of the Paris Agreement was the focus of attention at the UN Climate Change Conference in Madrid.

But what is Article 6 and why is it important with respect to climate action?

Article 6 is at the heart of the Paris Agreement as it aims at promoting integrated, holistic and balanced approaches that will assist governments in implementing their Nationally Determined Contributions (NDCs) through voluntary international cooperation. This cooperation mechanism, if properly designed, should make it easier to achieve reduction targets and raise ambition.

Besides, Article 6 also establishes a policy foundation for an emissions trading system, which could help lead to a global price on carbon. Under this mechanism, countries with low emissions would be allowed to sell their exceeding allowance to larger emitters, with an overall cap of greenhouse gas (GHG) emissions, ensuring their net reduction. Supply and demand for emissions allowances would lead to the establishment of a global carbon price that would tie the negative externalities of GHG emissions to polluters. In other words, by paying a price on carbon, states exceeding their NDCs would bear the costs of global warming.

So, why was there a little headway in Madrid negotiations?

Accusations for failure were heaped on all sides against countries such a USA, Russia, India, China, Brazil and Saudi Arabia. These were the main opponents of the necessary global decisions to implement Article 6. The results of the conference disappointed many people. The decisions about the carbon market and emissions cut were delayed to the next climate conference in Glasgow. For instance, the United States, moreover, reportedly argued for language under Article 8 of the Paris Agreement that would insulate the United States from any obligation to compensate for any climate-related loss and damage.

Similarly, the 2019 UN Climate Action Summit was held at the headquarters of the United Nations in New York on 23 September 2019. The theme was: "Climate Action Summit 2019: A Race We Can Win. A Race We Must Win.”  

The results of the summit were significant though it is believed that they were not enough to limit the rise of global temperature to less than 1.5 degrees as needed to address the climate crisis. China did not increase its Paris Agreement commitments, India did not pledge to reduce its use of coal, and the U.S. did not even speak at the conference.

Notwithstanding the tremendous global political mobilisation galvanized by Greta Thunberg, a Swedish schoolgirl, who has become a climate activist, alongside the rise of climate change activism around the world, and the optimism to effectively implement the Paris Agreement remains a question mark. Nonetheless, the sole approach is to press ahead for State compliance though it’s a mountain to climb.

In spite of the global failure to act proactively, the European Union has recently reached an agreement about ‘the European Green New Deal’ that should lower its emissions to zero by 2050. Also, many commitments were made by countries, cities, businesses and intergovernmental organisations.

The world’s leading climate scientists have, however, consistently warned that if the rules for implementing the 2015 Paris agreement aren’t given the attention they deserve, climate change will continue to deteriorate. The overriding issue of how fast the world needs to cut greenhouse gas emissions has received lukewarm attention.

Prior to the next COP26 in Glasgow, there’s a need for UN talks to tackle the climate as a matter of urgency. Perhaps the absence of explicit legal sanction or punitive consequences in the text of the Paris Agreement treaty arguably makes countries negotiate while taking extreme positions to delay reaching decisions to implement the Agreement.

At the very least, one would argue that, even within the hard and soft letter of the Paris Agreement, is interwoven an independent (customary) international legal obligation to negotiate in good faith that could be the substantive basis for incurring international or State responsibility.

This obligation does not pertain to the specific realisation of climate targets, but rather, refers to the good faith obligation of States to ensure that negotiations to implement the Paris Agreement remain meaningful. 

Furthermore, the principle of intergenerational equity demands a spectrum of remedies under international law to compel States to act to ensure full implementation of the Paris Agreement, even if that means resorting to a whole host of climate change-based international litigation, adjudication and/or arbitration at this point.

The writer is a law expert.

The views expressed in this article are of the author.