The Sixth Report of the Intergovernmental Panel on Climate Change makes for grim reading. It concludes that it is “unequivocal” that human influence has warmed the earth; that “widespread and rapid” changes have occurred; and that this pace of change is unprecedented in the last 2000 years (See Summary for Policy-makers here, August 2021, A.1; SPM.1).
Against that backdrop, international cooperation to combat climate change is ever-more important. This article briefly considers some of the law underpinning that cooperation. It does so with an eye on the upcoming COP26 meeting.
What is a COP?
COP stands for Conference of the Parties. The parties in question being those 196 parties to the UN Framework Convention on Climate Change of 1992 (here, see Art. 7) (“the 1992 Convention”). The 1992 Convention aims to prevent “dangerous anthropogenic interference with the climate system” (Art. 2) in particular through the reduction of greenhouse gas emissions.
The 1992 Convention did not impose any specific target reduction; it imposed broader and more general duties (e.g. to “take climate change considerations into account, to the extent feasible, in social, economic and environmental policies and actions”, Art. 4(f)) and required parties to create public “registers” of their emissions.
The COP was envisaged as the monitoring body for the 1992 Convention. It serves as a meeting point for the parties to discuss, evaluate and plan for reductions in greenhouse gas emissions.
Previous COPs: the Paris Agreement
COPs have led to important successes in the fight against climate change. The Kyoto Protocol, product of the COP of 1997, created specific targets for developed nations (see here). The Paris Agreement, which readers will surely have heard of, was itself the product of COP21 in 2015.
Three elements can be focused on of that Agreement: (i) the “goal”, (ii) the nationally determined contributions, and (iii) the accountability mechanisms.
(i) The goal:
Under the Paris Agreement, a “goal” was set, namely a holding temperature increase to well below 2 degrees of pre-industrial levels. The terms of that “goal” require unpacking:
1. This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by:
(a) Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change
Article 2 is complex. On closer reading, it is carefully crafted to avoid giving rise to a specific ‘target’, let alone an enforceable duty to reach it:
- The overall “aim” is to strengthen the global response to the threat of climate change. Any temperature limitation is part of that general aim;
- The temperature limiting provision itself refers to “well below 2 degrees”, but quite what that means is not spelled out; and
- Any limit to an increase of 1.5 degrees is, in reality, a commitment to pursue efforts to limit it to such an increase.
The aspirational nature of this temperature limiting goal is reflected throughout the Agreement. Article 4 makes it clear that Article 2 is a “long-term temperature goal” (See also, Art. 7(1)).
One might contrast this text with the clear “duty” set out in s. 1 of the Climate Change Act 2008 (as amended, here):
The target for 2050
(1) It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 100% lower than the 1990 baseline
(ii) Nationally determined contributions.
Under the Paris Agreement, parties are to periodically determine, in advance, how much greenhouse gas they intend to emit every five years. These are nationally determined contributions (NDCs). They are not binding; they spell out intended emissions. However, they are communicated to, and publicly recorded by, the COP Secretariat. This transparency gives an element of public accountability in the event of non-compliance. As Voigt and Gao put it, the Agreement “create[s] peer pressure between Parties in order to facilitate the improvement of their performance” (see here).
The steps taken to ensure compliance with the Agreement’s temperature aim are therefore driven at the national level through the NDCs. This gives rise to a certain tension: there is a global “goal” to which practically all States are committed. But the practical steps to achieve that “goal” are left principally to each individual state.
(iii) Enforcing Compliance: Dispute resolution?
The Paris Agreement 2015 has a number of mechanisms to encourage compliance.
First, It has an “enhanced transparency framework” where each party gives regular updates on its compliance with the Agreement, and builds up knowledge on how to best reduce climate change (Art. 13). But in classic UN-speak, the framework must be “implemented in a facilitative, non-intrusive, non-punitive manner, respectful of national sovereignty, and avoid placing undue burden on Parties.” (Art. 13(2)).
Second, Article 14 provides a “global stock-take”, a regular meeting at the COP to evaluate global compliance with the Convention. The first is to take place in 2023.
Third, the Agreement anticipates “a mechanism to promote compliance” (Art. 15(1)). That body – the Article 15 Committee – is to be “expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive” (Article 15(2)). This plainly points away from a judicial-type body that issues binding decisions. This has subsequently been confirmed. The Rules of Procedure for the Article 15 Committee – agreed in 2018 – state that it “shall neither function as an enforcement or dispute settlement mechanism” (see here, 20/CMA.1, para 4).
The Article 15 Committee has jurisdiction over the following matters:
- Parties can refer themselves to the body for compliance with any provision in the Agreement (para 20);
- The Committee must investigate failures to comply with certain defined obligations under the Agreement, such as the duty to submit NDCs (para 22(a)); and
- Investigate certain “significant and persistent” issues in relation to a party’s compliance with the Agreement, but only where that party consents (para 22(b)).
Other than the defined obligations which the Committee must investigate, it operates essentially on an opt-in basis – and even then its role is a facilitative one, not a dispute resolution one. The effect is that there is – in Voigt and Gao’s words – “no mechanism to individually review the content or level of ambition of the NDC itself as communicated by each Party.” There may, however, be ways of enforcing the Paris Agreement in domestic courts – an interesting topic which is covered in part in this Blog here.
Where are the teeth?
The above may seem rather woolly: temperature goals, contributions determined by each country’s intentions, and the lack of an international dispute resolution body to police the framework. Where are the teeth, one might ask?
The answer is, in part, because the 1992 Convention starts from the “global nature of climate change” and recognises that adverse climate impacts are a “common concern”. The Convention preferred a multilateral and collaborative approach to tackling climate change, rather than creating specific (and binding) reduction targets. One might contrast this with other international agreements which, for example, not only create justiciable obligations, but also have binding dispute resolution mechanisms to enforce them. The EU Treaties, as is well known, would be such an example – and radically contrast with the 1992 Convention and the Paris Agreement.
There would have been obvious political obstacles to creating binding international emission reduction targets (and let alone a single arbiter to police them). The multilateral approach in the international framework clearly reflects national sensitives. Less cynically, that approach also recognises that no single nation is able to solve a global problem like climate change. As a result, that framework leaves the steps taken to address climate change to the national level, but monitors them at the international level.
The COP26 finds home in the latter level, providing strategic guidance to climate change efforts, and providing a degree of accountability by overseeing those efforts. It is because of the multilateral approach that the COP26 is particularly important, as it provides an international “steer” to the goal in Article 2 of the Paris Agreement.
COP26 in Context?
Considering the imminence of the climate emergency, it may be tempting to see COP26 as more “talk” and not enough “action”. “Blah blah blah” as Greta Thunberg said (here). The facilitative nature of the Conference, however, owes much to the way States have decided to tackle climate change at the international level. It is perhaps fairer to see the COP26 “talk” as a symptom, rather than a cause, of the current situation.
We will have to wait and see what comes of COP26. It is of particular importance because it will be the first time since the Paris Agreement that the five year NDCs will be submitted. COP26 will provide an important glimpse into the practical steps that parties are taking to reach the temperature goal in Article 2. The Agreement itself recognises that the temperature goal is a “long term” one (Art. 4). We will see quite how long term “long term” really is. Whether it is too long is another matter.
Michael Rhimes is a barrister at Francis Taylor Building specialising in environmental, planning and public law.
Back to ELB Blogs