18/19 Environmental Law Competition Winner, S. Kiviranta, ‘Paris Rulebook: Can Transparency Replace Obligations of Result?’

Author: Samuli Kiviranta

 

Less than a month had passed since the finalisation of the ‘Paris Rulebook’ in Katowice this December, when the President of the United States communicated his amusement at a presidential hopeful ‘talking proudly of fighting global warming while standing in a virtual blizzard of snow’.[1] The alarming persistence of this type of sentiment and its  coincidence with record levels of climate-heating greenhouse gases (‘GHSs’)2 call for an evaluation of the collective legal tools employed in the battle against climate change.

The most influential tool, the United Nations Framework Convention on Climate Change (‘Convention’), aims to achieve  ‘…stabilization of [GHG] concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.[2] The Convention requires parties to implement national programmes aimed at mitigating climate change,[3] and importantly, to ‘communicate to the Conference of the Parties (‘COP’) information related to implementation…’.[4] This is achieved through national communications (‘NCs’) that describe steps taken and envisaged towards the implementation of the Convention, and by providing inventories of GHG emissions by sources and removals by sinks.[5]

Transparency arrangements, among other aspects of the Convention regime, have evolved through subsequent subsidiary treaties and decisions. The Kyoto Protocol (‘Protocol’) set quantified and binding emission reduction targets for developed countries.[6] Annual reporting on the targets requires more detail than the NCs under the Convention, including on the provision of finance and technology transfer.[7] The reports are subject to review by expert review teams[8] that can refer the matter to a compliance committee, which in turn can find a party to be ‘non-compliant’ and issue sanctions including more stringent emission requirements in the subsequent commitment period.[9]

The Bali Action Plan[10] saw the introduction of transparencyenhancing principles that have since transformed, through subsequent COP decisions, into a comprehensive measurement, reporting and verification framework (‘MRV’). The treatment of developed and developing countries in the MRV is bifurcated, based on the principle that parties should protect the climate system ‘in accordance with their common but differentiated responsibilities and respective capabilities’.[11]

The Paris Agreement (‘Agreement’),[12] entering into force in 2020, takes on a completely different approach to climate change than its predecessors. In place of the top-down regulation brought to its height under the Protocol, the Agreement adopts a bottom-up approach in which each party is to choose their own nationally determined contributions (‘NDCs’) according to their national circumstances.[13] Moreover, there are no obligations of result. Instead, the Agreement deploys obligations of conduct coupled with a bona fide expectation of results.

A more comprehensive regime of transparency was considered imperative to balance the high degree of autonomy. The idea is that clarity increases accountability, mobilises domestic support for climate action and builds confidence among parties by allowing them to view how other parties implement their NDCs.[14] To facilitate this, the Agreement introduces the enhanced transparency framework (‘ETF’).[15]

The Agreement and the accompanying Decision 1/CP.21 contained some information on how the ETF will function but left out a lot of detail. In order to determine how the framework was to work in practise, the Agreement mandated the adoption of modalities, procedures and guidelines (known as ‘the Paris Rulebook’) for transparency of action and support.[16] The Paris Rulebook was finalised this December at the 24th COP in Katowice.

The most important features of the new transparency rules relate to mitigation. In climate context, mitigation refers to ‘actions that reduce net carbon emissions and limit long-term climate change’.[17] It captures both efforts to prevent or reduce emission of GHGs, such as adopting new technologies; and actions to increase the capacity of existing carbon sinks, through methods such a reforestation.[18] The ETF’s minimum transparency requirements for mitigation entail the submission of national GHG inventories and information on the progress made towards NDCs.[19] This is to elaborate on the Agreement requirement to communicate NDCs every five years, and to include in them ‘information necessary for clarity, transparency and understanding’.[20]

It is evident that the ETF will take on a more important role than previous transparency arrangements ever have. This notion should not be taken as commendation of the particular reporting methods it entails per se. Rather, in order to address the lack of binding obligations under the Agreement, transparency graduates from the role of aspirational statistics to that of a quasi-enforcement regime. At least that is the plan. Indeed, the continuing effectiveness of our most influential climate change combatting tool will depend to a large extent on how well ETF fulfils this role. It is difficult to evaluate the merits of the ETF in bringing about accountability or the other desired effects before it becomes operational. There are, however, some broader points to be made regarding challenges that, in light of past experiences, are unlikely to be addressed by the ETF.

The first is the lack of judgement. The reference to implementation in a ‘facilitative, non-intrusive, non-punitive manner, respectful of national sovereignty, [while avoiding to place] undue burden on Parties’[21] is claimed to indicate sympathy to the national circumstances of different parties.[22] However, it will most likely also mean that – just like under the existing system – the review procedures will fail to question the appropriateness of state measures and avoid placing any burden or demands on parties under review.[23] Eschewing political judgement as an outcome, albeit facilitative to the conclusion of treaties, undermines the efficiency of transparency.

Second, transparency measures in general are perhaps not as potent in bringing about accountability as is often suggested. More transparency is not always better – ‘drowning’ parties in disclosure can erode the potential of transparency.[24]

Further, transparency measures rarely take into account the perceived fairness of parties’ efforts[25] and are unlikely to reveal individual or collective ambitions levels.[26] Neither have such measures attempted to compare national contributions based on the political efforts required for their implementation rather than their technical metrics.[27] In short, the framework, like others before it, will be far from holistic.

This said, the bottom line is that this particular combination of autonomy and transparency has attracted 195 signatories to a climate treaty – a feat that predicts a decline in global GHG emissions likely to outweigh the eventual abuses of its lax constitution. The Agreement appears a good political compromise on the way to something better.

 

Bibliography

 

International Instruments

  • United Nations Framework Convention on Climate Change (1992).
  • Kyoto Protocol to the United Nations Framework Convention on Climate Change (1997).
  • United Nations Framework Convention on Climate Change (2005) Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol Decision 15/CMP.1 ‘Guidelines for the preparation of the information required under Article 7 of the Kyoto Protocol’.
  • United Nations Framework Convention on Climate Change (2005) Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol Decision 22/CMP.1 ‘Guidelines for review under Article 8 of the Kyoto Protocol’.
  • United Nations Framework Convention on Climate Change (2005) Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol Decision 27/CMP.1 ‘Procedures and mechanisms relating to compliance under the Kyoto Protocol’.
  • United Nations Framework Convention on Climate Change (2007) Conference of the Parties Decision 1/CP.13 ‘Bali Action Plan’.
  • United Nations Framework Convention on Climate Change (2010)

Conference of the Parties Decision 1/CP.16 ‘The Cancun

Agreements: Outcome of the work of the Ad Hoc Working
Group on Long-term Cooperative Action under the Convention’.

  • United Nations Framework Convention on Climate Change (2011)

Conference of the Parties Decision 1/CP.17 ‘Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action’.

  • United Nations Framework Convention on Climate Change (2011) Conference of the Parties Decision 2/CP.17 ‘Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’.
  • United Nations Framework Convention on Climate Change (2014) Conference of the Parties Decision 1/CP.20 ‘Lima Call for Climate Action’.
  • Paris Agreement under the United Nations Framework Convention on Climate Change (2015).
  • United Nations Framework Convention on Climate Change (2015) Conference of the Parties Decision 1/CP.21 ‘Adoption of the Paris Agreement’.

 

Journal Articles

  • Grubb M, ‘Viewpoint: The Seven Months of Kyoto’ (2001) 1 Climate Policy
  • Gupta A & van Asselt H, ‘Transparency in Multilateral Climate Politics: Furthering (or Distracting from) Accountability?’ (2017) Regulation and Governance.
  • Gupta A & Mason M, ‘Disclosing or Obscuring? The Politics of Transparency in Climate Governance’ (2016) 18 Current Opinion in Environmental Sustainability
  • Rajamani L, ‘Ambition and Differentiation in the 2015 Paris

Agreement: Interpretative Possibilities and Underlying Politics’ (2016) Volume 65 International and Comparative Law Quarterly 493.

  • Winkler H, Mantlana B & Letete T, ‘Transparency of Action and Support in the Paris Agreement’ (2017) Volume 17 Issue 7 Climate Policy

 

Government and Private Publications

  • van Asselt H, Weikmans R, Roberts T & Abeysinghe A, Working Paper: Putting the Enhanced Transparency Framework into Action: Priorities for a Key Pillar of the Paris Agreement (Oxford: Stockholm Environment Institute, 2016).
  • van Asselt H, Weikmans R, Roberts T & Abeysinghe A,

Transparency of Action and Support under the Paris Agreement (Oxford: European Capacity Building Initiative, 2016).

  • Ngwadla X & El-Bakri S, The Global Goal for Adaptation under the Paris Agreement: Putting Ideas into Action (London: Climate and Development Knowledge Network, 2016).

 

Books

  • Barker T, Bashmakov I, Bernstein L, Bogner J, Bosch P & Dave R,

“Summary for Policy Makers” in Metz B, Davidson OR, Bosch PR,

Dave R & Meyer LA (eds), Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (2007).

  • Fisher B & Nakicenovic N, “Chapter 3: Issues Related to Mitigation in the Long-Term Context” in Metz B, Davidson OR, Bosch PR, Dave R & Meyer LA (eds), Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (2007).
  • Metz B, Davidson O, Martens JW, Van Rooijen S & Van Wie Mcgrory L (eds), Methodological and Technological Issues in Technology Transfer (2000).
  • United Nations Climate Change Secretariat, Handbook on Measurement, Reporting and Verification for Developing Country Parties (2014).

 

Newspaper Articles

  • Carrington D, ‘Climate-Heating Greenhouse Gases at Record

Levels, Says UN’ The Guardian

<https://www.theguardian.com/environment/2018/nov/22/climateheating-greenhouse-gases-at-record-levels-says-un&gt; (Accessed 14 Feb 2019).

 

(1042 words)

[1] Holmes Lybrand, ‘Fact Checking Trump’s Snowstorm Tweet’ (11 Feb 2019) CNN Politics <https://edition.cnn.com/2019/02/11/politics/factchecking-trump-snowstorm-tweet/index.html&gt; (Accessed 14 Feb 2019). 2 Damian Carrington, ‘Climate-Heating Greenhouse Gases at Record

Levels, Says UN’ The Guardian

<https://www.theguardian.com/environment/2018/nov/22/climateheating-greenhouse-gases-at-record-levels-says-un&gt; (Accessed 14 Feb 2019).

[2] United Nations Framework Convention on Climate Change (1992) (hereafter Convention) art 2.

 

[3] Convention art 4.1(b).

[4] Convention art 4.1(j).

[5] Convention art 12.1.

[6] Kyoto Protocol to the United Nations Framework Convention on Climate Change (1997) art 3.1.

[7] See generally United Nations Framework Convention on Climate Change (2005) Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol Decision 15/CMP.1.

[8] United Nations Framework Convention on Climate Change (2005) Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol Decision 22/CMP.1 [2].

[9] United Nations Framework Convention on Climate Change (2005) Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol Decision 27/CMP.1 section XV.

[10] United Nations Framework Convention on Climate Change (2007) Conference of the Parties Decision 1/CP.13.

[11] Convention art 3.1.

[12] Paris Agreement under the United Nations Framework Convention on Climate Change (2015) (hereafter Agreement).

[13] Agreement art 4.2.

[14] Harro van Asselt, Romain Weikmans, Timmons Roberts & Achala Abeysinghe, Transparency of Action and Support under the Paris Agreement (Oxford: European Capacity Building Initiative, 2016) at 5.

[15] Agreement art 13.1.

[16] Agreement art 13.13.

[17] Brian Fisher & Nebojsa Nakicenovic, “Chapter 3: Issues Related to

Mitigation in the Long-Term Context” in B Metz, OR Davidson, PR Bosch, R Dave & LA Meyer (eds), Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (2007) at 225.

[18] Terry Barker, Igor Bashmakov, Lenny Bernstein, Jean Bogner, Peter Bosch & Rutu Dave, “Summary for Policy Makers” in Metz et al, above n18 at 10.

[19] Agreement art 13.7.

[20] Agreement arts 4.2, 4.8 & 4.9.

[21] Agreement art 13.3.

[22] van Asselt et al, above n15 at 9.

[23] Aarti Gupta & Harro van Asselt, ‘Transparency in Multilateral Climate Politics: Furthering (or Distracting from) Accountability?’ (2017) Regulation and Governance at 13.

[24] Aarti Gupta & Michel Mason, ‘Disclosing or Obscuring? The Politics of Transparency in Climate Governance’ (2016) 18 Current Opinion in Environmental Sustainability 82 at 3.

[25] Gupta et al, above n24 at 11.

[26] Ibid.

[27] Id at 14.

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