- Jan 06 2016
On 12 December in Paris, 196 Parties to the U.N. Framework Convention on Climate Change (UNFCCC) reached what is being described as a landmark agreement. The brave new agreement is built up by the stitching up of ‘self-defined’ national contributions of all parties. The evolving climate regime – one that combines bottom-up national pledges for climate action with top-down rules for review, transparency and collective consideration of overall adequacy, represents a paradigm shift from earlier attempts to craft a global climate agreement.
The top-down approach of the 1997 Kyoto Protocol – where targets were negotiated rather than pledged – lacked adherents and faced defections. The ‘do-as-you-please’ approach of the Cancun Agreements lacked ambition and transparency. Since its inception, adapting the top-down multilateral treaty model to the challenge of climate change has been a Sisyphean task. In Paris, countries found ‘middle ground’, charting a new course in a two-decade old effort to respond to global climate change, characterized by a fine balance between bottom-up national contributions and top-down rules of the game that might deliver both ambition and universal participation. The national contributions will be dynamic, open for review and with peer pressure for scaling up self-determined effort every five years – within a framework of long-term goals and rules for monitoring, review and transparency.
Theory and experiences from elsewhere suggest that a ‘clumsy’1 approach to climate policy might just work. Institutional experts have studied the surprising resilience possible in ‘polycentric governance’ that creates adaptive agreements better suited to complex problems than simpler, more efficient but more brittle agreements.2 The Paris Agreement is perhaps the most ambitious effort to construct a global consensus on how to manage one of the most uniquely complex problems faced by mankind. The new paradigm raises some new questions, such as the role of peer pressure and free riding in climate politics, while old challenges like equity, differentiation, technological change, financing and inclusivity remain and take on new forms.
This essay analyzes the outcomes of the Paris Agreement and what these might mean for India. The hybrid spirit of the agreement is reflected in how many of major themes – ambition, legal form, differentiation, financing, monitoring and review and adaptation – have been handled. India has also compromised on some of its earlier negotiation positions but it has also managed to shape the agreement in ways that will allow it to meet its development aspirations. In so doing it has demonstrated pragmatic leadership.
Prior to COP 21, the goal to limit global average temperature rise to 1.5 degrees had been given little chance of finding its way into the Paris Agreement. International climate diplomacy had rallied around the goal to limit average temperature rise to two degrees, ever since economist William Nordhaus introduced the two-degree concept to avoid extreme climate impacts in climate change conversations in 1975. However, the High Ambition Coalition, which emerged from the shadows in Paris and included the vulnerable Low Lying Island States (who have been historically championing the 1.5 degree target) as well as the US and EU were keen from the beginning to keep 1.5 degrees as a target point for the Paris Agreement.
The coalition however reportedly faced criticism from some developing countries and in the end a compromise was achieved in the final text. The agreement calls for ‘…holding the increase in the global average temperature to well below 2oC above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5o C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.3’ Ambition and realism thus finds its resonance in the global goal and together centre the agreement on the middle ground.
Hybrid legal form: The Paris Agreement is a treaty under international law but not all of its provisions are legally binding. The hybrid legal character was necessary in view of the domestic politics in the United States – allowing for an agreement that could be implemented through a presidential decree in the US under existing laws and acts – without it having to go to the Congress for approval where the Republicans would surely block it. The Kyoto Protocol was like staging Hamlet without the Prince, as the US, the largest emitter, did not ratify it because of the legally binding nature of mitigation commitments. In the Paris Agreement only the mechanisms of monitoring, review and transparency are legally binding; on US insistence ‘should’ was substituted with ‘shall’ in all clauses committing developed countries to emission targets and financial support. Procedural commitments to ‘prepare, communicate and maintain’ NDC that ‘represent progression’ after each cycle are binding.
India and developing countries have consistently argued that though all may contribute to the problem, they do not contribute equally – climate change is a situation of common but differentiated responsibility, with emissions per capita ranging from practically nil to 40 tons per capita in some wealthy countries. The Paris Agreement is technically under the UNFCCC, where the guiding principle of common but differentiated responsibilities is safely enshrined. However, in effect the new agreement blurs the strict differentiation between developed and developing countries with a framework where all countries put their best foot forward and improve their efforts progressively based on their respective capabilities and national circumstances.
Differentiation between the developed and developing countries is recalled in parts of the Paris Agreement, especially as it relates to the capacity to finance climate action – the agreement maintains the differentiation between developed and developing countries for the provision of finance for climate action. With regards to mitigation the agreement, for example, states that developed countries should take the lead – reducing their economy-wide reduction pledges – while countries like India have pledged emission intensity pledges allowing for space to increase overall emissions.
However, since the current pledges do not add up to the amount of emission cuts needed to meet even the two-degree goal, let alone the more ambitious 1.5 degree one, India will eventually be under pressure to limit its emissions. The ‘historic responsibility’ of the developed countries for causing climate changes does not appear anywhere in the agreement and any mention of differentiation only relates to varying capacities. To that extent, the firewall between developed and developing countries has been breached and the categories are more fluid. Countries can ultimately be expected to self-differentiate but be open to nudging from their peers to do more.
The mitigation agenda of the agreement is framed by its long-term goals – emissions cuts needed to keep average warming to below two-degree Celsius (at the same time urging countries to pursue efforts to limit temperature rise to 1.5 degrees) and the ultimate goal of a net balance between emissions by sources and removals by sinks. The agreement allows countries like India to pursue domestic measures with aim of achieving the national contributions without making the either the implementation or achievement legally binding. Domestic realities and politics will ultimately determine how a country meets its mitigation contributions. In the near future, this does not limit India’s options to provide energy at low cost to his vast population of energy poor. In the longer term, however, India will be under pressure to move towards low carbon energy choices – and this top-down pressure must be met with a bottom-up response on India’s part.
Finance is always a sticking point in climate conversations. The principles of historical responsibility and respective capabilities mean that developed countries are under pressure to transfer resources to developing countries for climate action and for support in adaptation. At Copenhagen in 2009, developed countries promised to mobilize USD 100 billion per annum by 2020 for climate needs and priorities of developing countries. Much of that finance has yet to materialize. The Paris Agreement’s legally binding portion does not contain the USD 100 billion figure. It does, however, recognize that developed countries will take the lead in mobilizing climate finance for developing country needs and that such mobilization should be a progression over previous efforts. The agreement crucially calls for a balance between support for mitigation and adaptation initiatives. Lastly, the Transparency Framework Mechanism established as part of the Paris outcome has been tasked with monitoring the flow of finance from developed countries and under Article 13, developed countries are legally bound to provide information on financial support provided to developing countries.
Adaptation was initially considered a taboo topic in climate diplomacy for potentially encouraging low levels of ambition in mitigation action and the initial efforts of the parties to the UNFCCC were overwhelmingly mitigation focused (the Kyoto Protocol in 1997 is a clear example of the same). In the past decade, however, as the impacts of climate change have become more noticeable and disastrous, and as mitigation action has stuttered, adaptation has enjoyed creeping significance in climate policy discussions. The outcome from COP21 in Paris in a sense completes the road travelled by adaptation in that it receives significant attention in the final text (Article 7). A global goal on adaptation was always conspicuous by its absence, especially in comparison to mitigation’s two-degree target. Scholars have been calling for a global goal on adaptation in line with sustainable development objectives4 and the Paris Agreement has established the same, calling for an increase in adaptive capacity and resilience in order to contribute to sustainable development.
The agreement calls for an adaptation communication to be submitted by parties, which includes its priorities, implementation and support needs as well as plans and actions. Parity in attention paid to mitigation and adaptation has been a core pillar of Indian position; the Paris agreement comes a long way in addressing this.
The Small Island Developing Countries, among others, also successfully argued for a provision on extending the Warsaw International Mechanism on Loss and Damage with the caveat that the provision does not involve or provide a basis for any liability – the latter being a US red line.
How can a bottom-up climate approach ensure compliance on multiple fronts? Peer pressure politics – existing incentives to cooperation and the reputation of governments around the world – suggests that it can get us some of the way there. The OECD has had a long history of peer review mechanics leading to effective peer pressure that enforces norms. The major cause of effectiveness in peer pressure regimes is trust, which can be built over time through progressively greater cooperation.5 Peer pressure could combine feasibility with effectiveness. One need look no further than the interest in the Indian press to the news that 13 of the world’s 20 most polluted cities are Indian to see that transparent rankings can produce attention.6 In addition, peer review regimes can, over time, create the mutual trust necessary both for their own implementation and for more stringent international accords.7 The court of public opinion and peer pressure can help solve this problem, as disenfranchised populations within many countries have done thus far through rallies for the indigenous or small island states.8
The Paris Agreement is certainly not the end of the road for climate, as some had hoped it would be. The current pledges do not add up to what is needed for the two-degree goal and how countries ratchet up their efforts will be critical. It is in effect a diluted agreement, catering to the lowest common denominator in the polity of nations. Simply put, Paris is where Copenhagen or even Kyoto should have been. Crucial provisions related to finance and technology is still being ironed out post COP 21. This devil is in the details and should not be ignored.
At the same time, COP 21 does mark an important inch stone (not a milestone!) for climate change. For India, it was not an unmitigated victory as some had hoped it would be. On the other hand, India was very visible during the conference; in ways more than one, this was Indian climate diplomacy coming of age. India in COP 21 moved from being an ‘agenda taker’ to an ‘agenda maker’, in the jargon of international relations theory.
Legal experts have explored the possibility for pragmatic but ‘incompletely theorized’ agreements in which ambiguity or divergence on abstract principles do not prevent concrete progress.9 While India set aside some of its traditional commitment to principles of differentiation, historical responsibility and equity – it ensured that many small steps were taken in the right direction which were equitable. Concepts like ‘climate justice’ and ‘sustainable lifestyles and consumption’ were introduced by India in the preamble of the text.
Ultimately, whether it is COP 21 or any of its putative successors, climate change requires both top-down and bottom-up approaches, which blends national aspiration with global norms. Now that we have – an albeit mild – agreement, it is time to move beyond the rhetoric and posturing that marked the run up to Paris and get down to the hard task of implementation. Ultimately, the success of COP 21 will be measured by what it did tangibly as opposed to what it promised – or even set out – to do.
1. M. Verwij, M. Thompson, Clumsy Solutions for a Complex World. Palgrave MacMillian, 2006.
2. Elinor Oostrom, A Polycentric Approach for Coping with Climate Change, Office of the Senior Vice President and Chief Economist, The World Bank, October 2009.
3. UNFCCC, Paris Agreement
5. Fabricio Pagani, Peer Review as a Tool for Cooperation and Change. Directorate for Legal Affairs, OECD, 2002.
6. Shibaji Roychoudhury, ‘Thirteen of the 20 Most Polluted Cities in the World are Indian.’ Scroll.in, 5 December 2014, accessed 1 April 2015, http://scroll.in/article/693116/Thirteen-of-the-20-most-polluted-cities-in-the-world-are-Indian.
7. Pagani, ‘Peer Review’, op. cit.
8. ‘Thousands Flood Lima’s Streets in Largest Latin American Climate March’, Global Voices, 15 December 2014, accessed 6 April 2015, https://globalvoicesonline.org/2014/12/15/photos-largest-climate-march-in-latin-american-history-floods-limas-streets/.
9. Cass Sunstein, Legal Reasoning and Political Conflict. Oxford University Press, Oxford, 1996, p. 37.
This article originally appeared in Seminar Magazine.