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The Paris Agreement and the challenges for climate change policy regime

The Paris Agreement and the challenges for climate change policy regime

The historic Paris Agreement adopted in 2015 entered into force yesterday and is now legally binding. The agreement represents an immense triumph for global diplomacy, since it was ratified by 92 countries in less than a year’s time, including some of the world’s biggest emitters such as China, India, and the US.

The Agreement has been hailed “historic” as it tailored an internationally coordinated but nationally driven long-term comprehensive action plan, which will guide how countries address climate change from 2020 onwards. This article will highlight some of the key features of the Paris Agreement, as well as some challenges countries may face in trying to implement the agreement.

History

The Paris Agreement represents the third phase of the United Nations climate regulatory regime.

The first phase ran from 1990-1995 and involved the creation of United Nations Framework Convention on Climate Change (UNFCCC). The UNFCCC has the ultimate objective of stabilising greenhouse gases in the atmosphere: The convention not only identifies guiding principles, but also establishes processes and institutions to enable countries to cooperate to achieve this aim.

The second phase of the climate governance regime ran for a decade from 1995-2004, and involved the initiation of the Kyoto Protocol negotiations. The Kyoto Protocol is a legally binding instrument, which triggered stern legally binding commitments on specifically developed countries to reduce their emissions.

The current phase of the climate regime began in 2005. This phase focuses on developing a more global approach to address climate change, with nationally-tailored flexible commitments, which push every country to reduce greenhouse gas emissions, irrespective of whether they are developed or not.

Key features of Paris Agreement

The Paris Agreement is a legally binding instrument under international law, and in particular with the provisions of Vienna Convention on the Law of Treaties (VCLT) 1969. It is a universally applicable legal framework with common goals and commitments, which are applicable to both developed and developing countries. The agreement sets forth an ambitious collective goal to hold warming well below 2 degrees with efforts to limit warming to 1.5 degrees above pre-industrial levels. And to achieve this goal, the agreement tailored a hybrid architecture that combines a nationally driven bottom-up approach to promote flexibility and participation with a top-down system of international rules to promote ambition. To ratify the Paris Agreement, each country was required to submit a Nationally Determined Contribution (NDCs) which would reflect both their national pledges to reduce greenhouse gas emissions as well as domestic policy in place that would actually help tackle climate change, including adaptation plans.

It is worth noting that countries can meet their NDC targets by transferring “mitigation outcomes” internationally -- either in the context of emission trading, or to allow results-based payments.

However, each country’s national effort to tackle climate change will be subject to the principle of “equity” and the principle of “common but differentiated responsibilities and respective capabilities,” acknowledging different national contents. To achieve net zero emissions over time, the Paris Agreement set forth a long-term framework with 5-years target cycles, including review of 2030 targets in 2020. After each 5-year cycle, countries are required to provide NDC targets that are more ambitious than before to push them to stabilise greenhouse gases in the atmosphere.

Now, countries must elaborate more detailed rules for how the Paris Agreement will work in practice to secure its effective implementation

To secure effective implementation of each country’s NDC commitments, the Paris Agreement inscribed three mechanisms for rigorous oversight: First a “transparency framework” to review implementation; second, an implementation and compliance mechanism to review compliance; and third, a global-stock take to assess collective progress of NDCs’ implementation.

The Agreement also set forth a mechanism to increase countries’ ability to deal with climate impacts (adaptation) and to recover from them (loss and damage). The agreement commits developed countries to provide climate finance to assist developing countries, both to reduce emissions and to build resilience to climate change impacts (in continuation of their existing obligations under the convention). Countries that are still developing or are newly developed are “encouraged” to provide such support “voluntarily.”

Implementation challenges

The Paris Agreement institutionalises a new paradigm within the climate governance regime by setting up a flexible nationally driven bottom-up approach. As such, the success of the Paris Agreement will depend on how countries carry forward their aspirational goals, targets, binding obligations of conduct in relation to mitigation and so on. For some countries, this will mean putting significantly more climate protection measures in place, such as investing in energy efficiency and renewable energy.

However, the Paris Agreement only creates a basic structure for the new climate change regime -- the cycle of NDCs, reporting, review, stocktaking, and updating.

Now, countries must elaborate more detailed rules for how the Paris Agreement will work in practice to secure its effective implementation. It is necessary to effectively design detailed rules, procedures, and frameworks for implementing the Paris Agreement: Including special guidance for NDCs; rules for the transparency framework; guidelines for the functioning of global stocktake, specifically its review mechanism; and procedures for a pre-2020 progress review (the “facilitative dialogue”) and so on.

However, the entry into force of the Paris agreement triggers the launch of the Agreement’s governing body, the Conference of the Parties serving as the meeting of the parties to the Paris Agreement or CMA. The first session of the CMA is going to be held in Marrakech (from 15-18 November 2016) in conjunction with Conference of the Parties (COP) 22, and Conference of the Parties serving as the meeting of the Parties).

In CMA-1, parties will decide on setting up a basic framework so that countries can determine their contributions, timelines, and accountability in meeting the agreement’s commitment.

Sharaban Tahura Zaman and M Hafijul Islam Khan are Environmental Lawyers, working with the International Centre for Climate Change and Development at the Independent University, Bangladesh and the Centre for Climate Justice-Bangladesh.

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