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Is the Paris Climate Deal Legally Binding or Not?

Timmons Roberts's picture

Timmons Roberts is a US sociologist and Ittleson Professor of Environmental Studies at Brown University.

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  • Nov 8, 2017
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“Like hell it’s non-binding,” Donald Trump has said of the 2015 UN deal to cut carbon pollution. Is he right, ask Timmons Roberts and Angelica Arellano? The answer is not black or white. Article courtesy Climate Home News.

When Donald Trump announced he intended to leave the Paris climate deal, he blamed the “draconian financial and economic burdens the agreement imposes on our country”.

In response, dozens of articles noted that the agreement was not legally binding, for the US or any other country. To which Trump responded: “Like hell it’s non-binding”. (i.e. he said it was binding, editor)

But commentators have pushed back against the president. The Washington Examiner, a staunchly conservative newspaper, noted “there are no enforcement mechanisms under the deal through the United Nations”.

So, which is the case? Is the agreement binding or not?

Much angst

The truth is that some parts of the deal are legally binding and some aren’t. The text is littered with modal verbs – should, shall, may, etc. – that carry different legal weight. Shall is the big one; it obliges countries to undertake that action. The Paris deal contains 117 ‘shalls’.

For example, Article 4 of the Paris Agreement reads: “Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve.”

The US certainly pushed for flexibility, as the Obama administration feared a blockade in the US Senate to anything that was binding

‘Nationally determined contributions’ is the term the UN climate talks use to refer to pledges countries make to  reduce their emissions within a specific time frame. All nations must legally prepare one of these pledges, but the ambition of those pledges is a matter for the country.

Note here: “Developed country parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets.” This particular ‘should’ was the source of much angst in the final hours of the Paris negotiations.

Billions and billions and billions

Countries that have submitted their nationally determined contributions must update them every five years. In their effort to meet these NDCs, countries must be transparent about greenhouse gas emissions and the actions taken to reduce those emissions.

This transparency means that countries are required to report their greenhouse gas emissions – with developed countries having to do so on an annual basis. This requirement is more flexible for least developed countries and small island developing states, which may choose to report as they wish. In addition to transparency about emissions, developed countries must also communicate the finance and other support given to developing countries to help meet their respective NDCs.

Article 4 also says “support shall be provided to developing country parties”. While Trump described the “billions and billions and billions” of dollars that the US would be required to provide, the pledge is collective among all the wealthy nations: the US has no required contribution.

Naming and shaming

So why is the Paris Agreement so flexible? A look at previous international climate agreements might suggest that the Paris Agreement aimed to change things up, steering away from the binding nature of previous agreements. That rigid structure had failed many times before.

The US certainly pushed for flexibility, as the Obama administration feared a blockade in the US Senate to anything that was binding. The French hosts also had a negotiation strategy that prioritised flexibility.

All but two nations – Syria and Nicaragua – signed the Paris Agreement, and currently 172 have gone the final step to ratification. Nicaragua, which didn’t sign up because the agreement was not binding enough, has in recent weeks reversed its position in solidarity with Caribbean hurricane victims. (Syria has also indicated in recent days it wants to sign, editor.)

So how could the Paris Agreement actually work? Since it is mostly non-binding on substance but binding on reporting, the efficacy of the whole deal depends on countries “naming and shaming” each other to do better.

Poorer countries may fear criticising nations on whom they depend for significant financial and military aid

With current estimates of warming that will occur even if countries meet their Paris pledges varying from 2.7C to 3.5C, there will need to be a lot of effective shaming.

However, it is unusual for countries to call each other out in public venues for fear that they will themselves face such an attack. And, of course, poorer countries may fear criticising nations on whom they depend for significant financial and military aid.

Proponents argue that the Paris system of accountability might work by allowing nations to take greater action voluntarily than they would have if they were forced.

Todd Stern, former US lead negotiator, said in June: “This structure recognises that norms and expectations can often be more effective in encouraging robust action than legally binding requirements, which, paradoxically, can yield weaker action as some countries low-ball their targets for fear of legal liability.”

“The Paris Agreement built a regime that was not only acceptable to all from the start, but designed to evolve in precisely the direction needed to meet our profound climate challenge,” he said.

By  and 

Timmons Roberts is a US sociologist and Ittleson Professor of Environmental Studies at Brown University. Angelica Arellano is an undergraduate student at Brown University.

This article first appeared on Climate Home News and is republished here under this website’s Creative Commons licence.

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Willem Post's picture
Willem Post on Nov 8, 2017

The truth is that some parts of the deal are legally binding and some aren’t.

It is NOT legally binding unless the US Congress approves/ratifies the COP21 treaty.

Many countries have not ratified the treaty.

http://www.windtaskforce.org/profiles/blogs/cop21-ipcc-co2-emission-redu...

Willem Post's picture
Willem Post on Nov 8, 2017

The world CO2eq emissions, all sources, are on a “business as usual” trajectory to become about 64.7 b Mt by 2030. If so, the increase above pre-industrial would be about 4.3 C by 2100.

Current world investments in RE systems of about $280 b/y, which have been about the same for the 2011 – 2016 period (6 years), likely would lead to emissions of about 64.7 b Mt by 2030. China has spent about $80 b/y during the past 3 years to finally deal with its horrendous pollution problems.

The world CO2eq emissions, all sources, would be about 58.9 b Mt by 2030, with full implementation of all policies and pledges made prior to COP21. If so, the increase would be about 3.7 C by 2100. Investments of at least $600 b/y, starting immediately, would be required to achieve the IPCC trajectory of 58.9 b Mt by 2030. See note 1.

The world CO2eq emissions, all sources, would be about 55.2 b Mt by 2030, with full implementation of UNCONDITIONAL COP21 pledges by 2030, per IPCC. If so, the increase would be about 3.2 C by 2100.

The world CO2eq emissions, all sources, would be about 52.8 b Mt by 2030, with full implementation of CONDITIONAL COP21 pledges by 2030. If so, the increase would be about 3.0 C by 2100.

The world CO2eq emissions, all sources, would be about 41.8 b Mt by 2030, with an ADDITIONAL 52.8 – 41.8 = 11.0 b Mt of CO2eq emissions reduction by 2030. If so, the increase would be about 2.0 C by 2100. That additional reduction is not trivial, as it is equivalent to about 11 times the total annual emissions of the entire EU28 transportation sector.

The world CO2eq emissions, all sources, would be about 36.5 b Mt by 2030, with an ADDITIONAL 52.8 – 36.5 = 16.3 b Mt of CO2eq emissions reduction by 2030. If so, the increase would be about 1.5 C by 2100. Investments of at least $1.5 trillion/y, starting immediately, would be required to achieve the IPCC trajectory of 36.5 b Mt by 2030.

NOTE 1: Since COP1 (Kyoto in 1990), all major developed nations have failed to fully implement all policies and pledges they made to decrease CO2eq emissions.
http://www.nature.com/news/prove-paris-was-more-than-paper-promises-1.22378

NOTE 2: The emission reduction would become about 1.0 b Mt less, due to the US withdrawal from COP21, which means other nations would have to make up the difference, not only regarding emission reduction, but also regarding the anticipated US contribution to the Green Climate Fund, about $25 b in 2020, and much greater annual amounts thereafter. China and India, major polluters and claiming “developing nation status”, would not pay a dime.

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