U.N. Secretary-General Ban Ki-moon, delivers a speech during a conference at the COP21, the United Nations Climate Change Conference on Dec. 10, 2015. AP Photo/Christophe Ena
U.N. Secretary-General Ban Ki-moon, delivers a speech during a conference at the COP21, the United Nations Climate Change Conference on Dec. 10, 2015. AP Photo/Christophe Ena

CIGI Senior Fellow David Estrin's commentary on the Paris Agreement was published today in the Dhaka Tribune.

The world’s nations recognise in the preamble to the December 2015 Paris Climate Agreement “that climate change represents an urgent and potentially irreversible threat to human societies and the planet” and “that deep reductions in global emissions will be required…” Yet, in the main provisions of the agreement, the parties failed to commit to actions necessary to save the planet and protect the human rights of those most vulnerable to climate change.  

While admittedly the agreement is “historic” for its ambitious aspirations, from a practical and legal perspective the Paris agreement is worrisome.  The two-week  Paris meetings and side events demonstrated heightened appreciation by states, provinces, cities, and business that the carbon economy will need to be limited; and the meeting resulted in pledges of new activity for that purpose, including potentially increased funding for green technology development and adaptation. But it is more hyperbole than reality to call the text agreed in Paris by the 196 parties to the 1992 United Nations Framework Convention on Climate Change a meaningful “legal agreement” that will stop the clear trajectory we are now on to a dangerous 3 degrees Celsius warming of the globe. That trajectory will imperil the homelands, lives, and livelihoods of many millions of people now living, as well as future generations.  Here are the reasons why the world collectively retains its position on that course.

First, the Paris agreement lacks specific measures and enforceable means to limit emissions from existing greenhouse gas sources to ensure the globe’s average temperature does not increase well beyond the limits of safe living on the planet. Despite comments by many world leaders and those in the media, the Paris text is not a binding “legal agreement” requiring any specific country to reduce its emissions. Although world leaders agreed to lofty goals such as keeping the global temperature rise to less than 2C and preferably to 1.5C, they failed to require individual countries or even groups of countries to reduce emissions by specific amounts or by any particular deadline.  Countries committed only to a peaking of emissions “as soon as possible” (with a recognition that it would take longer for developing countries), and a goal of net greenhouse gas neutrality “in the second half of this century.”

In the meantime, the agreement sets no emission limits that any country must meet; it simply encourages best efforts. Even though all countries are to prepare voluntary emission mitigation commitments (and revise these every five years), and  although they agreed to “pursue domestic measures with the aim of achieving these objectives,” there are no binding obligations to implement or achieve these objectives.

Second, the agreement specifically refrains from authorising “enforcement” action that would punish a particular country, even if it were clear that failing to reduce emission by certain amounts or times was required, which they are not.  Promoting compliance is referenced in the agreement, but this is to be carried out in a “facilitative” and “non-adversarial and non-punitive” manner.  In short, the Paris agreement contains no specific legal requirements and no means to ensure that carbon emission will decrease and that humanity won’t be roasted, toasted, drowned, or exiled.   

Ironically, the clearest legal part of the Paris agreement prevents those countries that will suffer the greatest human rights impacts, and who had the least to do with creating climate change emissions -- island communities that will disappear and low-lying parts of other countries that will be washed away or inundated by rising sea levels, those who need help the most -- from claiming compensation to move and re-establish themselves and their livelihoods.  At the insistence of the United States and some other developed countries, the agreement specifically provides that “compensation” and “liability” for such loss and damage cannot be read into the agreement.

Another major gap in the Paris agreement is the absence of any restriction on the “business as usual” approach for carbon producers.  Although at least one commentator suggested that “the biggest loser in the Paris agreement could be the fossil fuel industry,” in fact the Paris agreement does not threaten them. Their interests are well-protected. There are no lofty or indeed any specific goals in the agreement to restrict new coal mines, new coal fired power plants, or petrochemical projects and also no requirements to phase out existing carbon-based materials, such as coal, oil, or other fossil fuels by a specific date. Remarkably, the words oil, fossil fuels, and coal don’t even appear in the agreement.  These carbon companies are no doubt celebrating the Paris agreement. For example, in response to the Paris agreement, the World Coal Association referred to projections by the International Energy Agency that “electricity generation from coal would grow by 24% by 2040” even under the various emission target reductions just pledged by world states before the Paris meeting.

This optimism by the coal industry is consistent with further major gaps in the agreement: It fails to mention let alone endorse the need to keep significant amounts of current carbon reserves embedded in place as a vital step to meeting the world “carbon budget.” It appears the carbon industry was successful in convincing world leaders to effectively ignore the advice of the International Energy Agency and other experts, who have advised that, to keep the global temperature rise to less than 2C, at least 66 % -- and as much as 80% -- of embedded carbon reserves must remain in the ground.  And in a similar vein, goals advocated by some countries, such as “decarbonisation” and “climate neutrality” did not make the final text.  By failing to even mention the objective of keeping some reserves embedded and also failing to suggest restrictions on major new coal mines and other high carbon energy production and use, some might argue the agreement in effect provides international approval -- even legal protection -- for the world’s carbon producers to continue business as usual, potentially to the end of this century, without any mandatory interim emission cutbacks.  At that point it will be much too late to stop clearly dangerous climate impacts from becoming common.

The agreement is also disappointing for failing to provide any language with respect to human rights in the operating part of the agreement. Although the concept appears in the preamble, due to opposition by some countries, the agreement fails to provide any direction in the operational clauses to prevent future horrific human rights abuses similar to those that ironically, but tragically, occurred and continue to occur, particularly in Central and South America, in the implementation of projects approved and financed under the UNFCCC process in response to climate change.

From a climate change perspective, 2015 marks not just the year of the Paris agreement; it is also the year in which several landmark citizen law suits before domestic courts have resulted in decisions, such as Urgenda in the Netherlands and Leghari in Pakistan, in which judges have told national governments they have legal duties to limit carbon emissions  and protect their citizens from climate impacts, regardless of the inaction of other countries.  Given the worrying practical and legal gaps in the Paris Agreement, frustrated citizens in other countries may increasingly call on domestic court judges to remind their governments they must substantively reduce carbon emission and not just spout greenhouse gas rhetoric.

Given the worrying practical and legal gaps in the Paris Agreement, frustrated citizens in other countries may increasingly call on domestic court judges to remind their governments they must substantively reduce carbon emission and not just spout greenho
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