Legal Framework and Structure of the Paris Agreement on an International Plane - By Charalee Graydon

Framework: The Paris Agreement meets the requirements of a treaty under the Vienna Convention on the Law of Treaties and is part of the United Nations Framework Convention on Climate Change (UNFCCC). This paper examines the status and legal structure of the agreement in international law, sets out the objectives of the Paris Agreement and provides background material leading to the Paris Agreement. It is shown that the agreement supports the objectives of the UFCCC which seeks international cooperation to combat climate change by limiting average global temperature increases and to deal with climate change impacts.

The Agreement is a treaty that melds general principles of traditional and modern international law, employing concepts of hard and soft international law. Binding and non-binding norms are replaced with the objective of cooperation between States whose sovereignty is respected by recognition that States will set their own goals in reducing greenhouse gas emissions.

The UNFCCC and Paris Agreement work together to promote the objective of limiting greenhouse gas emissions. The law of treaties in these instruments is augmented by general principles of international law, unilateral declarations and the gradual development of customary law. It is shown that concepts of rights and obligations relating to climate change create norms that reflect the changing scientific, economic and political realities of States in the twenty-first century. By ratifying the Paris Agreement, States provide definition to the objectives of the UNFCCC and UN protocols dealing with climate change.
The Paris Agreement sets out procedures for States to report their emissions and share information about handling impacts of climate change. The Paris Agreement witnesses the goal of bringing UN member States together to set a benchmark for reduction of emissions of greenhouse gases by using cooperation to achieve this objective. The goal is furthered by employing a method for dispute resolution focusing on negotiation and peaceful methods. The international legal status of the Paris Agreement is that of a binding treaty addressing reduction of greenhouse gas into the atmosphere. Working in conjunction with the UNFCCC, the Paris Agreement provides a model of cooperative international law.
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Structure: This paper examines the structure and legal status of the Paris Agreement on the International plane. It reviews whether the Paris Agreement meets the requirements of a treaty under the Vienna Convention on the Law of Treaties and examines how the agreement fits in the United Nations Framework Convention on Climate Change. It sets out the objectives of the Paris Agreement and provides background material leading to the agreement. It is shown that the agreement supports the objectives of the UNFCC which seeks international cooperation to combat climate change by limiting average global temperature increases and dealing with climate change impacts.

The Paris Agreement is a treaty that melds general principles of traditional with those of modern international law. Binding and non-binding norms are replaced with the objective of cooperation between States whose sovereignty is respected by recognition that States set their own goals for reducing greenhouse gas emissions. The UNFCCC and the Paris Agreement show they work together in promoting the objective of limiting greenhouse gas emissions. The law of treaties in these climate change instruments is augmented by general principles of international law, unilateral declarations and the gradual development of customary law. It is shown that concepts of rights and obligations relating to climate change create norms reflecting the changing scientific, economic and political realities of States in the twenty-first century. By ratifying the Paris Agreement, States provide definition to the objectives of the UNFCCC and UN protocols dealing with climate change. The Paris Agreement sets out procedures for States to report their emissions and share information about handling impacts of climate change. The Paris Agreement has achieved the important goal of bringing UN member States together to set a benchmark for reduction of emissions of greenhouse gases using cooperation. This goal is furthered by employing dispute resolution which focuses on negotiation and peaceful methods. For example, non-cooperation with the Agreement is handled using diplomatic relations and peer pressure by other States.

It is concluded that the international legal status of the Paris Agreement is that of a binding treaty addressing reduction of greenhouse gas into the atmosphere. Working in conjunction with the UNFCCC, the Paris Agreement is a model of cooperative international law.

Background Information leading to the Paris Agreement: The Paris agreement is the result of an international collective process that has been guided by the UN during the twentieth and twenty first centuries to address greenhouse gas emissions. Climate conferences and meetings, under the auspices of the UN, have been taking place since the 1970s. The first world climate conference was held in 1979 in Geneva where specialists met to discuss matters regarding climate variability and the contribution of humans to modification of the climate. Specialists from several disciplines contributed to this conference and set the stage for international engagement by arranging a forum to obtain and share technical information and enter agreements to handle matters raised to deal with greenhouse gas emissions. The meeting recognized that climate change affects the lives of people throughout the world and the need for an international forum where technical information could be shared and agreements on handling climate change fostered.

Additional meetings were held during the 1980s with a second world climate conference in 1990 involving the UN Environmental Protection Committee. While member States did not set specific targets to limit CO2 emissions at this conference, they discussed principles subsequently adopted as part of the UNFCCC to stabilize greenhouse gas emissions. The UN also started treaty negotiations on climate change using the Intergovernmental Negotiating Committee.

At a meeting in Rio de Janeiro in 1992, the UN climate change document was signed by 154 states, including the European Council. This showed the ability of UN member States to cooperate on the issue of climate change. Through the Council of Parties (COP) mechanism, the UN sought models to meet the objective of member States to reduce greenhouse gas emissions. After several attempts, UN member States met this objective at the COP21 meeting where the Paris Agreement was negotiated and signed. This Agreement addresses measures for stabilization of greenhouse gas emissions in the atmosphere in a manner that recognizes other UN and international instruments dealing with universal human rights, general principles of international law and other UN treaties and protocols such as the Kyoto Protocol. An example of recognition of human rights is found in the introductory provision that climate change is a common concern of humankind. Other matters include recognition of the need for equity and that countries should have different responsibilities based on their levels of development and contribution to climate change.

Of importance to climate change concepts addressed in the UN Meetings was that the Intergovernmental Panel on Climate Change (IPCC), the body established to review the state of existing knowledge on environmental, economic and social aspects of climate change, issued its first report in 1990. Following a thorough review of worldwide scientific and technical material, its findings confirmed scientific evidence of climate change. The IPCC published its second and third reports in 1995 and 2001, continuing to provide information on humankind’s impact on climate change and setting up matters for funding and tools for adaptation to climate change. Its fourth report in 2014 indicated, in most scenarios without additional mitigation efforts…warming is more likely than not to exceed 4 degrees [7degrees F] above pre-industrial levels by 2100. The risks associated with temperatures at or above 4 degrees include substantial species extinction, global and regional food insecurity, consequential constraints on common human activities…
The report indicates the gravity of this warming and its impacts on biodiversity. Also important is its conclusion that there would be limited potential for adaptation.

COP meetings continued to address climate change with notable meetings in Berlin in 1995, Geneva in 1996 and Kyoto, Japan in 1997. At the Kyoto conference, industrialized countries negotiated a protocol which set targets for emission reduction and timetables for this reduction. It is interesting to note that the USA, one of the developed countries, did not sign the protocol. Despite this, the UNFCCC moved forward.

A group of experts devoted to dealing with climate change introduced the Oslo principles in 2015. These principles employ international law, human rights law, environmental law and tort law to address matters associated with climate change. The principles provide concepts and climate change ideas that can be used by governments and judicial bodies for interpretation of legal obligations relating to climate change.

Adoption and Coming into Force of the Paris Agreement and its Structure: The COP21 agreement brought world leaders from diverse backgrounds together in Paris in November and December, 2015 to address climate change. The conference was extended to allow State representatives to come to agreement on the terms to be set for the reduction of greenhouse gas emissions. The decision made is that States will work toward reducing emissions well below 2°C above pre-industrial levels and make efforts to limit the temperature increase to 1.5 °C. The agreement sets out articles on matters to be used to meet this objective.

The address by the President of the US, Barak Obama, illustrates the commitment made by the USA at that time: In my first inaugural address, I committed this country to the tireless task of combating climate change and protecting this planet for future generations. Two weeks ago, in Paris, I said before the world that we needed a strong global agreement to accomplish this goal — an enduring agreement that reduces global carbon pollution and sets the world on a course to a low-carbon future. A few hours ago, we succeeded. We came together around the strong agreement the world needed. We met the moment.

This commitment has not been followed by President Trump, who decided that the US will withdraw from the Paris Agreement. This decision is relevant not only to the loss of one of the countries responsible for high levels of greenhouse gas emissions, but to the failure of a State to respect general principles of international law and customary law. To confuse the situation, in January, 2018, President Trump indicated the possibility of the USA re-entering the Paris Agreement. Questions as to what the USA will do regarding compliance with its obligations under Article 3 of the Agreement made at the COP21 conference are uncertain.

From review of Articles in the Paris Agreement one sees that the agreement is a not a top down agreement which sets standards and targets to be met as was the case in the Kyoto Protocol. In the Paris Agreement, States will set their own objectives to reduce emissions and there are no legally binding enforcement provisions to hold them to these projections. The States set their objectives for greenhouse gas reductions by, what is referred to as, Nationally Determined Contributions (NDC´s). The structure also differs from the Kyoto Protocol in that it is modeled on cooperation rather than the imposition of targets. Concern has been voiced as to the lack of enforcement provisions, however, the lack of such enforcement has been suggested as one of the reasons UN member States have signed the agreement, with 174 States having become parties to the Agreement. As well, one commentator has referred to the enforcement mechanism of the Paris Agreement as being one of peer pressure and cooperation.

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