Agreement on climate change adopted, but non-legally binding

As all eyes were on Paris on a new global agreement on climate change, it has ultimately been approved by nearly 200 countries. The agreement is aimed exclusively at reducing greenhouses gas emissions to avoid threat of global warming due to human activities. More specifically, the agreement embodies that following key measures: “to peak greenhouse gas emissions as soon as possible and achieve a balance between sources and sinks of greenhouse gases in the second half of this century; to keep global temperature increase “well below” 2C (3.6F) and to pursue efforts to limit it to 1.5C; to review progress every five years; and $100bn a year in climate finance for developing countries by 2020, with a commitment to further finance in the future”. After reading this 32-page document, personally, I fairly welcome the efforts made to have this agreement in place which is, of course, a turning point in international environmental law. Though the language of the text contains both legally binding and non-legal elements, every country has a legal and moral obligation to take robust mitigating measures. Obviously, anthropogenic impact on climate change affects every country―developed countries and developing countries. Findings have revealed that the five worst greenhouse gas emitters are China, USA, India, Russia, and Japan, which contribute 60% of total global emissions. China being the worst emitter of greenhouse gas with 26% of the total global emissions. This is utterly lamentable! The big question today is the implementation of the agreement. At this juncture, we’re celebrating for this historic agreement, which is one thing, but implementation is another thing. While it is conventionally believed that renewable energy is the only primary technology solution to combat climate change, caused undoubtedly by continued heavy reliance on fossil fuels since the industrial revolution, will countries effect the agreement in good faith? Despite enormous constraints associated with renewables, it requires big commitment of all countries since effects of climate change cannot, and will not, be resolved by state acting individually, but acting collectively and cooperatively. Are countries ready to supplant their heavy reliance on fossil fuels (oil, coal and gas) to renewable energy? Let’s watch and see what will happen in years ahead, if actions will speak louder than words, if not, the other way around! Nonetheless, at this rate, developed countries must take the lead in implementing the “intended nationally determined contributions” as well as honouring their pledge of $100 billion annually for assisting developing countries. Let me turn to some of the specific provisions of this seemingly ‘ambitious agreement’. To begin, Article 3 of Paris Agreement states that “as nationally determined contributions to the global response to climate change, all Parties are to undertake and communicate ambitious efforts...” but doesn’t mandate exactly how much each country must reduce its greenhouse gas emissions. Rather, it sets out to keep global temperature increase “well below” 2C (3.6F) and to pursue efforts to limit it to 1.5C, but how can this be done while complying with the principle of common but differentiated responsibilities and respective capabilities. And how can that objective be achieved? Another serious challenge in the agreement is lack of enforcement measures to be taken against countries that do not comply. Any such an agreement that lacks enforcement measures is doomed to have inefficient implementation. To put it in a nutshell, the fact that no possibility of assigning liability or punishing non-compliant nations, states can take advantage of that to fail to comply with their obligation since no consequences. Instead, the agreement calls for the creation of a committee of experts to “facilitate implementation” and “promote compliance” with the agreement, but it won’t have the power to punish violators. Similarly, the Supreme Body of the Convention of COP, which will serve as the meeting of the Parties to this agreement, isn’t vested with the powers to take at least sanctions against violators of the agreement. Another likely challenge is for the countries that may not ratify the agreement. For example, when the USA and Australia refused to adhere to the Kyoto Protocol, yet they are one of the biggest carbon emitters, no measures could be taken against them. Such inaction is likely due to absence of reservations in the agreement. Article 9 of the Paris Agreement provides that “Developed country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation in continuation of their existing obligations under the Convention”. This provision is so reminiscent of the same pledges made during the adoption of Kyoto Protocol and Copenhagen Conference, respectively, in a sense that this is not the first time developed countries have pledged to assist financially developing countries in adapting climate change mitigating measures but funds provided were extremely negligible. Suppose if, again, $100 billion pledged isn’t provided annually, should the developing countries go ahead to take measures likely to paralyse their economic development. The agreement mentions no measures which can be taken against the developed countries if they don’t make the funds available. Personally, I remain skeptical about this pledge. Fred K. NKUSI is a lecturer and international law expert

Opinions

Agreement on climate change adopted, but non-legally binding