There was electricity in the air when the COP21 President took everyone by surprise and declared the adoption of the Paris Agreement late on Saturday night in Le Bourget. All who were present rose up as one and screamed their joy, hope and relief. A full plenary with over 100 interventions, with each country requesting addition or suppression of language in different articles, would have been more transparent, inclusive, and democratic — attributes for which French Foreign Minister Laurent Fabius had ironically been praised throughout the two preceding weeks. This time, however, clearly fearing the collapse of the hard-built consensus surrounding his last draft, President Fabius literally hammered the adoption of the treaty before any state delegate had the time to request the floor. Shocking to those attached to procedural fairness, the manoeuvre received overwhelming support during the long celebratory plenary that followed.
To many observers, the last session of COP21 was excessively self-congratulatory. The current level of nationally determined greenhouse gas (GHG) reduction contributions (NDCs) is thought to lead us towards global temperature increases of 3 degrees Celsius above pre-industrial levels, which would likely have dire consequences: an increase in sea level by several meters and the displacement of millions, drop in food production due to droughts and wildfires, and armed conflicts because of increase pressure on resources. Furthermore, temperature increases of such a scale would lead to the release of considerable additional quantities of GHG currently captured in permafrost and polar ice caps.
Nonetheless, the spirits were high in Le Bourget on Saturday night. UN Secretary-General Ban Ki-moon observed that a movement once unthinkable is now unstoppable. He further indicated that markets now have a clear signal to unleash the full force of human ingenuity towards reaching the 1.5 degrees Celsius temperature increase ceiling. In the name of the powerful G77+China group (134 countries), South Africa’s Edna Molewa announced support for the text, noting that the acceptance of climate change-related legal obligations by developing countries constituted a major leap forward for them and recording the importance of developed countries paving the way forward. US Secretary of State John Kerry affirmed that this Agreement charts a new and sustainable path for the planet, sends a critical message to the global marketplace, and represents a victory for multilateralism. Indian Minister Prakash Javadekar stated that a new chapter of hope had been written for millions of persons, with the treaty acknowledging the importance of sustainable lifestyles and of protecting those countries most vulnerable to climate change. He closed by also stressing the right of developing countries to continue growing and lamented the lack of recognition of developed countries’ historical responsibilities for climate change in the Agreement. French President François Hollande affirmed that whereas the French Revolution had affirmed human rights, the new Agreement signals a climate revolution and entrenches the rights of humanity as a whole.
The Paris Agreement also contains grounds for concern, which were expressed by several states and the spokespersons for some of the officially accredited constituent groups, including youth, women, trade unions, and Indigenous peoples. These concerns include the aspirational formulation of the 1.5 C temperature increase target in article 2(a), the unclear long term goal of reaching a “balance” between carbon emission and natural removal (instead of decarbonisation or carbon neutrality) in article 4, the lack of clear timetable for emissions peaking “as soon as possible” and emission balance “in the second half of this century” despite the scientific evidence, the lack of mention of the 100 billion yearly target for the financial mechanism established at article 9 (only appearing in the adoption decision, para. 115), and the lack of inclusion of human rights in the operative part of the treaty (only mentioned in the Preamble). Many also criticised the exclusion from article 8, dealing with loss and damage, of any basis for historical liability or compensation, which appears in the adoption decision (at para. 52) and was certainly a condition for certain states’ support to the Agreement. The most vocal interventions raising those issues came from Nicaragua, Ecuador (in the name of the Community of Latin American and Caribbean States), the Philippines, Bolivia, and Papua New Guinea.
A key provision of the Paris Agreement is article 13, which establishes a transparency framework for action to mitigate climate change. Far from creating an International Court on the Environment to hold accountable those responsible for climate change, as recommended by the International Bar Association, the effectiveness of this framework will depend on the ability of states to exert pressure on each other to act more sustainably. Among other things, the parties to the Paris Agreement will be required to present 1) a periodic national inventory of their GHG emissions, 2) nationally determined commitments to be increased every five years, and 3) progress reports on the implementation of their commitments. The transparency framework will provide technical expert reviews of states’ reports, in light of the steps taken by other states and of the overall carbon neutrality objective, as well as a forum for multilateral consideration of the progress achieved (or lack thereof). This transparency-based approach contains no guarantee that high per-capita GHG emission populations will assume their share of responsibility, and no mechanism for international sanctions against states in case of poor performance. However, based on the experience of the Universal Periodic Review of compliance with human rights instruments and that of other specialized treaty bodies, processes of international disclosure and peer-review have a strong capacity to enable, influence, and constrain the actions of states and their populations because they affect their reputation.
As Maldives’s delegate Abdullahi Majeed affirmed in name of the Alliance of Small Island States (AOSIS), history will judge our generation not for having adopted the Paris Agreement, but by how we implement it. This will depend on whether states, individuals, local governments, business, and civil society organisations embrace the spirit of the climate revolution declared on December 12, 2015 and reflect ambitious nationally determined commitments in their daily activities.
Christopher Campbell-Duruflé is a recipient of CIGI’s Graduate Scholarships in International Law.
