American street artist Shepard Fairey, aka Obey's piece 'Earth Crisis', a giant sphere themed on environment hangs between the first and second floor of the Eiffel Tower in Paris on Nov. 20, 2015. The piece was on display leading up to the 2015 climate change conference. (AP Photo/Binta Epelly)
American street artist Shepard Fairey, aka Obey's piece 'Earth Crisis', a giant sphere themed on environment hangs between the first and second floor of the Eiffel Tower in Paris on Nov. 20, 2015. The piece was on display leading up to the 2015 climate change conference. (AP Photo/Binta Epelly)

Last week, the International Law Research Program (ILRP) attended and participated in the American Society of International Law (ASIL)’s 2016 Annual Meeting, which explores some of the most pressing international law topics of the day. This is the final post in the Global Rule of Law's three-part series on key policy questions that emerged from the meeting. To read the other posts, please visit the Global Rule of Law's main page

Last March 31st, at the Annual Meeting of the American Society of International Law (ASIL), the panel “Achieving Consensus on Climate Change” discussed key legal aspects of the Paris Climate Agreement (PA). The panel included leading legal scholars Hari Osofsky and Dan Bodansky, a legal advisor at US State Department, Susan Biniaz, a Law Professor and member of the Bahamas delegation to the United Nations Framework Convention on Climate Change (UNFCCC), Lisa Benjamin and a Senior Associate at World Resources Institute (WRI), Yamide Dagnet. Discussions covered several issues, including paradigm shifts in goals and differentiated obligations; a new balance between mitigation and adaptation; the loss and damage mechanism; and the incorporation of human rights in the preamble of the agreement.

The discussion was timing. More than 100 countries, including the three largest greenhouse gas emitters - United States, China and India - have declared their intention to formally sign the Paris Climate Agreement  next April 22, thus honoring the pledges made during the December 2015 Conference of Parties. The signatures and ratifications of the PA are important formal landmarks, yet the true success of the agreement will depend on states actually implementing their commitments and raising the ambition to meet their agreed upon collective climate goals. An Ad Hoc Working Group under the UNFCCC is now responsible for negotiating the rules needed to operationalize the Paris Agreement. Going forward, legal considerations will take center stage, helping to transform political will into a coherent legal and institutional framework to facilitate global and local climate action.

The panel discussed one aspect of the PA that is rarely debated outside legal circles, notwithstanding its relevance:  long-lasting disagreements that have prevented the adoption of the Draft Rules of Procedure for decision-making under the UNFCCC. Many multilateral environmental treaties, such as the Convention to Combat Desertification, establish a majority voting rule to facilitate collective decision-making. Under the UNFCCC, state parties appear to be caught in a Catch 22 situation. Wide divergences on who should bear which costs and which burdens of climate action have prevented states from accepting majority decisions in the global climate regime. In the absence of agreed upon procedural rules, the default decision-making option has been by “ad hoc consensus.” Yet, achieving universal consensus has proved elusive, due exactly to parties’ strong disagreements on key issues. In the 2009 COP19 in Copenhagen, for example, developed and developing countries were strongly divided along North/South lines on differentiation, finance and compliance. Without a majority rule, a successful negotiation proved impossible in Copenhagen.

In the road to Paris, most states accepted to compromise. They have informally settled on keeping decisions by majority preference, or “something less than unanimity.”  In Paris, dissenters have agreed to express their divergences while not blocking collective action. This informal rule of less than unanimity may have been enough to allow collective decision on the key broad elements of the Paris Agreement. Parties will find more difficult to rely on this type of fragile ad hoc procedural rule going forward, as discussion of the operational details of the agreement may reopen unsettled disputes.  One of the crucial elements to be agreed upon at the next COP 22 in Marrakesh is therefore clear procedural rules for decision-making under the UNFCCC, absent consensus. 

Going forward, legal considerations will take center stage, helping to transform political will into a coherent legal and institutional framework to facilitate global and local climate action.
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